Li3<

343.1 1,44^

Accession

205360

NOT TO BE TAKEN FROM THE LIBRARY

FORM NO. 37 2M-2-24

SAN FRANCISCO PUBLIC LIBRARY

3 1223 90093 4580

AMERICAN
STATE TRIALS

A Collection of the Important and Interest-
ing Criminal Trials which have taken place
in the United States, from the beginning
of our Government to the Present Day.

WITH NOTES AND ANNOTATIONS

JOHN D. LAWSON, LL.D.

EDITOR

VOLUME XIV

ST. LOUIS

THOMAS LAW BOOK CO.

1923

Copyright, 1923
By FRANCES C. LAWSON

X

343-1 .a

205360

TO
WILLIAM RENWICK RIDDELL,

LL.D., F.R.H.S., F.R.S.C.

Of Toronto, Canada.

JUSTICE OF THE SUPREME COURT OF ONTARIO

This volume is inscribed in recognition
of many years of warm friendship.

Digitized by the Internet Archive

in 2011 with funding from

California State Library Califa/LSTA Grant

http://www.archive.org/details/americanstatetri14laws

PREFACE TO VOLUME FOURTEEN.

No greater contrasts can be found in the history of
great crimes and great criminal trials than are illustra-
ted in the assassins, Charles J. Guiteau (p. 1) and Leon
F. Czolgosz (p. 159) and in the judicial proceedings
that ended in their execution for the murder of two Pres-
idents of the United States. No other historic tragedy
ever produced such a vile, ridiculous and unheroic char-
acter as Guiteau, a low and disreputable politician, who,
disappointed in his desire for a public office, takes his
revenge in murder and then poses as the agent of the
Almighty, commissioned to save the country from de-
struction. In his Recollections of an Alienist, Dr.
Hamilton wrote : "At the time, I said, 'Guiteau is only a
shrewd scamp with the plausibility of an Alfred Jingle
in swindling boarding-house keepers and evading the
payment of his debts; the visionary enthusiasm of Mic-
awber or Colonel Sellers; the cant and hypocrisy of
Aminidab Sleep or Uriah Heep; the ambition of Eras-
tratus and the murderous manners of Felton, who as-
sassinated the Duke of Buckingham, of whose crime the
the killing of Garfield was an exact counterpart.' Like
one of the murderers in Macbeth, he might have said :

And I another,
So weary with disasters, tugged with fortune,
That I would set my life on any chance
To mend it or be rid on it."

Czolgosz was a simple, uneducated, foreign youth, an
ordinarily industrious workman, without bad habits and
honest in his relation with fellow men, but unhappily

vi PREFACE TO VOLUME FOURTEEN.

listening to the advocates of anarchy and becoming im-
bued with their doctrines, until morbidly brooding over
the alleged wrongs of his class and persuaded that
anarchy was the only remedy, determined to destroy the
President because he was persuaded that anarchy could
never make any headway as long as the great mass of
people loved the head of the State as they did President
McKinley. Why the notorious Emma Goldman, whose
teachings inspired his crime, was not put in the dock
with him is hard to explain, unless it was that the laws
of New York were defective in this respect. There cer-
tainly was a good and sufficient precedent in the trial
and conviction of the Chicago Anarchists only 15 years
previous. (12 Am. St. Tr., p. 1.)

The defense in both trials was insanity, though
Guiteau dishonestly and Czolgosz sullenly, denied the
truth of the plea made for them by their counsel. What
is insanity from a legal standpoint? Except in a few
States, the law is adapted to protect the public against
the man or woman who has made himself a self-declared
judge, jury and executioner for the redress of injuries
to himself or some near relative. Nevertheless, crim-
inals in all parts of the United States escape punish-
ment not because of their legal insanity, but through
the emotional insanity of judges and jurors. The his-
tory of insanity in criminal courts has a place here. The
common law refuses to punish an insane man for acts
committed by him while in that condition. It is often
argued that as the object of punishment of criminals is
to protect society, madmen who commit crime should be
treated like mad dogs ; but the law is otherwise. It being
then only necessary for a criminal to prove himself in-
sane in order to go free, the defense of insanity has be-
come a favorite one when all other defenses and excuses

PREFACE TO VOLUME FOURTEEN. vii

have been found wanting. And it has become a difficult
question for the courts to decide. "We are not physi-
cians," exclaim the judges, "nor can we look into the
person's brain, and this being so we must have a legal
test of insanity." And what that test should be has
bothered the courts not a little. Lord Hale who tried
some of the first cases in which the "insanity plea" was
set up, thought that if the prisoner had as much sense
as an ordinary four-year-old child, he was a fit subject
for punishment. This was called the "child test" and
was followed by a good many judges until about 1724
when Chief Justice Tracy introduced a new test. "The
man who is to escape punishment for his crimes/' said
he, "must be a man that is totally deprived of his under-
standing and memory and doth not know what he is
doing no more than an infant, than a brute or a wild
beast." Finally in 1840 a looney pot-boy named Oxford
tried to kill the Queen as she was taking a drive one
summer afternoon. Denham, C. J., in charging the jury
told them that the question was whether the prisoner
knew the right and wrong of the act he was committing;
if he did he was responsible; if he did not he was not
responsible. This is called the "right and wrong" test
and is the law in England and in nearly all the states.
In New Hampshire and a few others, the courts say that
there ought to be no legal test of insanity; that the ques-
tion must simply be, was the man's insanity the cause of
his committing the crime? This is the "medical test"
and as it is substantially handing the whole matter over
to the doctors to settle, it is very popular with and much
advocated by that profession. In Kentucky a peculiar
idea has taken possession of its courts. It has been
aptly said by an English judge that there are three
powerful restraints existing, all tending to the assist-

viii PREFACE TO VOLUME FOURTEEN.

ance of the person who is laboring under a temptation
to commit a crimen — the restraint of religion, the re-
straint of conscience and the restraint of law. But in
Kentucky the temptation itself is held a legal excuse.
Their courts recognize what they call "moral insanity" ;
that is to say, the plea of "I couldn't help it ; I had an
irresistible impulse to do it," is accepted as an excuse
for a criminal act. If there happens to be a woman in
the case, the defense itself becomes irresistible. Such a
doctrine has no place in the common law of England
or in the jurisprudence of all those states where the
"right and wrong" test prevails. "The law," said an-
other English judge, "does not acknowledge the doctrine
of an uncontrollable impulse, if the person was aware it
was a wrong act he was about to commit. A man might
say he picked a pocket from some uncontrollable im-
pulse and in that case the law would have an uncontrol-
lable impulse to punish him for it." And so said the
Supreme Court of North Carolina where an astute coun-
sel attempted to clear his client on the "moral insanity"
theory.

"The law does not recognize any moral power compelling one to
do what he knows is wrong- 'To know the right and still the
wrong pursue' proceeds from a perverse will brought about by the
evil seductions of the evil one, but which nevertheless, with the
aids that lie within our reach as we are taught to believe may be
resisted and overcome; otherwise it would net seem to be con-
sistent with the principles of justice to punish any malefactor.
There are many appetites and passions which by long indulgence
acquire a mastery over men more or less strong. Some persons in-
deed deem themselves incapable of exerting will sufficient to arrest
their wrong-doing, speak of them as irresistible and impotently con-
tinue under their dominion. But the law is far from excusing crim-
inal acts committed under the impulse of such passions. To excuse
one from criminal responsibility the mind must be insane. The
accused should be in such a state from mental disease as not to
know the nature and quality of the act he was doing, or if he did
know it that he did not know he was doing what was wrong; and
this should be clearly established. This test, a knowledge of right

PREFACE TO VOLUME FOURTEEN. ix

and wrong, has long been resorted to as a general criterion for
deciding upon legal accountability and with a restricted application
to the act then about to be committed, is approved by the highest
authorities. If the prisoner knew what he did was wrong, the law
presumes that he had the power to resist it against all supernatural
agencies, and holds him amenable to punishment."

Another writer has well said :

"If the unlawful act of the prisoner is simply a lesion of the
will, moral insanity, if such persons are to be deemed irresponsible
— fit objects for Bedlam but not for punishment — our jails should
be thinned and lunatic asylums multiplied. But it is the duty of
a Christian and a rational being to keep down these unruly pas-
sions, and the physician who contends that man has no free will
and cannot control his ungovernable appetites, seems as unsound in
his theology, as erroneous in his law. The reader of his Bible dare
not admit that intense malevolence alone, even without ground or
provocation, actual or supposed, is of itself an unfailing proof of
insanity, or that a man is mad merely because he is desperately
wicked. Reason and religion teach us to reject the modern medical
code, fashionable and favorable to our corrupt nature, though it be,
that all are insane into whom, to judge from their deeds, Satan has
entered; that the more terrible the crime, if perpetrated without
apparent motive, the more conclusive is the existence of the malady.
To such paradoxes the law of England cannot venture to listen. The
law cannot tolerate the doctrine of making the crime itself proof
of irresponsibility, without inflicting the greatest individual injus-
tice and undermining the safeguards of society, without proclaim-
ing practical immunity to such wretched beings as Greenacre, Glee-
son, Wilson and Manning; to all, in short, who show the mind dis-
eased by inflicting horrors in the newest shape, and inventing
fresh modes of ghastly murder."*

The charge of Judge Cox to the jury in the Guiteau
trial is a masterly exposition of the "right and wrong"
test which is the law of the Federal Courts. This asks
the jury but one question: Did the prisoner know the
nature and quality of his act and that it was wrong?
i. e. contrary to law? Medical science asks: Was he
at the time he committed the act a victim of mental dis-
ease or medical unsoundness? In the Guiteau trial, the
great weight of medical testimony declared him sane,

i Modern State Trials, W. C. Townsend, London, 1850.

PREFACE TO VOLUME FOURTEEN.

according to the "right and wrong" test. In the Czolgosz
trial the experts for both prosecution and defense de-
clared him sane by both the legal and the medical tests.

Great was the indignation against the assassin of
President Garfield by the people of Washington.
General Sherman felt compelled, in the first days after
his incarceration, to send a considerable military force
to guard the jail. And before and during his long and
weary trial he was attacked several times by would-be
"avengers." Sergeant Mason, one of his guards, fired a
rifle ball into his cell, narrowly missing him, and a sub-
stantial farmer named William Jones, one afternoon
rode up behind the prison van and attempted to shoot
him while he was being conveyed from the court room
to the jail. What would have happened had the jury
disagreed or had they found him insane? Doubtless he
would have been lynched.2

Czolgosz was for a time in danger, also. "I never,"
says an eye-witness to the shooting, "saw such an ugly
crowd, and had it been led, it would have broken into the
Temple and taken him away from the few people there
and lynched him.."3 B*ut the vigilance of the Buffalo
authorities, their quick action in putting the criminal
beyond the reach of reporters and sensational news-

3 A story told to the editor ten years after the tragedy is of
interest. The narrator was an old soldier of the civil war where
he served as a captain of cavalry. "I was one," he said, "of 100
members of Gen. Garfield's command in the war who pledged them-
selves by a secret oath that Guiteau should not escape death. A
delegation of us drawn by lot and serving for a week at a time
were in the court room every day of the trial. On the day the jury
were to return their verdict twenty-five of us were present, each
with a loaded revolver in his pocket. Had the verdict been either
the prisoner is insane, or the prisoner is not guilty, that very in-
stant twenty-five bullets would have pierced the carcass of the
wretch."

3 General Babcock, p. 179.

PREFACE TO VOLUME FOURTEEN. xi

mongers and the firm belief of the citizens that he
would have a speedy and satisfactory trial, soon re-
moved any apprehensions of this kind.

The authorities in Washington were as lax as those of
Buffalo were vigilant. No sooner was Guiteau jailed
than he was permitted to issue an address to the Amer-
ican people. And all through the months of his confine-
ment and trial, reporters and anybody curious to see
him were admitted without limit; they came in crowds
and his daily interviews and messages to the public were
conveyed to every breakfast table until the scaffold
closed his mouth. But not a single person except the offi-
cers of the Government, the experts appointed to exam-
ine him and his counsel — not one reporter even — caught
even a glance of Czolgosz until he appeared in the court-
room, or were permitted to speak to him until he passed
into the custody of the sheriff to be taken to Albany to
be hanged. To the District Attorney the credit for this
was due. His course likewise in the permission to the
experts for both the State and prisoner to freely meet
and consult together and each obtain the same personal
knowledge of the prisoner's mental condition, is highly
to be commended. Its result was the complete agree-
ment of all of them as to the prisoner's sanity. This,
while it is the Continental method, was a new departure
in the United States. It was thought of in the Guiteau
trial, where each side retained its own experts who gave
their opinions in accordance with the requirements of
the party that paid them. And not only these profes-
sional witnesses, but the prisoner's "sisters, his cousins
and his aunts" and anybody who had ever seen or talked
to him, were allowed to take the stand and give their
opinions as to his state of mind.

The Counsel for the Government in the Guiteau trial

Xll

PREFACE TO VOLUME FOURTEEN.

were all able and distinguished members of the Bar. Yet
the conduct of the prosecution is open to much criticism.
Hardly had the testimony begun before they began to
show the differences between the "stalwart" and "half-
breed" republicans, a perfectly irrelevant matter and
one not for their side to go into. To prove the killing
and then rest was the proper course.4 And there was a
marked lack on their part of that official dignity that is
characteristic of the English Public Prosecutor and
which was so happily displayed in our early political
prosecutions, as carried on by those great lawyers
Rawle, Bradford, Randolph and Wirt, and whose care-
ful and courteous demeanor towards their opponents is
illustrated in several trials in this series.5 Mr. Porter's
cross-examination of Guiteau was well done, as it served
to impress the jury with his conceit, untruthfulness and
hypocrisy. But his closing speech is mainly a mass of
vituperative retorts between himself and the prisoner,
in which both employed the most virulent terms they
could command. A state prosecution should be con-
ducted with dignity and without resort to personal alter-
cation with and vituperation of a prisoner, no matter
how vile he may be.

Guiteau's counsel were his brother-in-law, a third-
class lawyer of somewhat his type, and his wife (who,
though not admitted to the bar, was permitted by the
Court to act as though she were), a disgraced attorney
from another State, and himself. The only reputable
member of the bar retained by him, retired from the
case after a few days' experience.

In preparing for the Czolgosz trial, the Bar Associa-
tion of Buffalo took the lead, and through its President

* See 10 Fed. Rep. 200.

o See for example the Trial of Fries, 11 Am. St. Tr. p. 1.

PREFACE TO VOLUME FOURTEEN. xiii

obtained the appointment of his defenders — for the cul-
prit was too poor to employ counsel for himself — two
of the oldest, most respected and most learned lawyers
of the county, both of whom had served on the Supreme
Court of the State. And the State was represented by
a prosecuting attorney whose highest aim was that the
prisoner should have all the constitutional rights to
which he was entitled and that complete justice should
be done. In such hands the conduct of the trial was
well nigh faultless. It was not a fight, a duel, a game
in which each side was straining every effort to win,
but was a sober, deliberate and thorough judicial inves-
tigation of a great crime. On the trial Czolgosz's atti-
tude was one of complete indifference. Never once dur-
ing the trial or afterwards, did he exhibit any of the
mannerism or boastful displays as Guiteau did. He
made no complaint of personal wrongs or persecution
such as Guiteau was constantly making; he never
showed once, as Guiteau did constantly, his satisfaction
at being the central figure in a great judicial function,
the observed of all observers, nor did he even once en-
deavor to simulate mental disease as Guiteau's conduct
on his trial indicated as his scheme. When called upon
to plead, he refused to answer,6 and when he finally
said the word "guilty" the judge refused to receive the

« Compare the action of the Court with the old common law pro-
cedure when a prisoner on arraignment stood mute and refused to
plead. The judgment rendered was called the peine et morte and
was as follows: "That the prisoner be remanded to the prison
from whence he came and put into a low, dark chamber and then
laid on the bare floor, naked, unless when decency forbids. That
there be placed upon his body as great a weight of iron as he could
bear and more; that he have no sustenance save only on the first
day, three morsels of the worst bread; and on the second day three
draughts of standing water that should be nearest the prison door;
and in this situation should be alternately his daily dish until he
died or answered".

XIV

PREFACE TO VOLUME FOURTEEN.

plea and ordered a plea of "not guilty" to be recorded.

The trial was attended neither by delay nor harassed
by the trivial technicalities of the law, so common in
trials for murder in the United States. A jury was pro-
cured, the evidence heard, the speeches to the jury and
the charge of the Judge and a verdict of guilty rendered
in fewer hours than it took weeks to convict Guiteau.
Czolgosz's counsel did everything that an honest lawyer
could do for a client. Their cross-examination of the
witnesses was sharp and searching and in their ad-
dresses to the jury they said all that could be said in his
favor. None of the devices and tricks of the ordinary
criminal lawyer were resorted to by them. They made
no motion for a new trial or in arrest of judgment; they
asked for no appeal to another Court; they did not at-
tempt to have the case carried through tribunal after
tribunal on a host of technical questions which their
knowledge of the criminal law might easily have suggest-
ed. As sound and learned lawyers they knew that there
was no just ground for such subterfuges, and as men of
good sense and good citizens they scorned to resort to a
deliberate imposition upon the higher courts simply for
the purpose of delaying the punishment of the assassin.
What a contrast to the Guiteau trial !

In one of the leading journals of the day, the conduct
of the Guiteau trial was summed up thus :

"Was there ever before in a tribunal of enlightened people such
concentrated and accumulated disgrace and real cause for shame?
A vituperative criminal, whose impudence and indecency could be
equalled only by his fluency and keenness of perception and rep-
artee; a hissing, jeering and applauding audience; perpetually
wrangling counsel; all three antagonistic forces often talking and
fighting at once; with a judge who, to all appearance was utterly in-
adequate to manage or control either — such was the trial of an un-
precedented criminal, for an unpardonable crime, which for ten
weeks disgraced this country and made a shameful spectacle for the
whole world. Who, that day after day listened to loud and vengeful

PREFACE TO YOLVME FOURTEEN. xv

shouts of the prisoner, to the bickering and quarrelling of the law-
yers, could believe that this trial could ever mount to a climax that
could, at last, simply express dignity and law"??

For this the presiding Judge was largely responsible.8
He was a good lawyer, a gentleman of the old school, of
benevolent temperament, but too mild and long-suffer-
ing for such a contest of which he was to be the arbiter.
He was unable to even preserve order in the court-room,
and marks of approval and disapproval came from the
audience without rebuke. The prisoner, as it was said
at the time, cared no more for the Judge's gentle cry of
"silence" than he did for the fly he brushed from his
nose. A strong Judge — like Cockburn, who tried the
Tichbourne Claimant — would have gagged him or re-
moved him from the courtroom, as he had a lawful right
to do, and Judge Cox was much criticized for his failure

• The Independent, Feb. 9, 1881.

s "Such elements as enter into the 'makeup' of Judge Cox are
rarely seen in any man, north or south, who has achieved success
or eminence. Said one who knows him well, 'I have never seen any
man really eminent who had so little self-consciousness. Judge Cox
is the most unpretentious man I ever knew. He assumes nothing.'
Judge Walter Cox was born in Georgetown and is by birth, associa-
tion and training a real son of the District of Columbia. Inheriting
a large fortune from his father, he had all the incentives to idle-
ness usually born of opulence; but though he lives in great ele-
gance, and entertains with large hospitality, he has been all his
life one of the hardest of workers. Standing in the foremost rank
as a lawyer, he has been for years at the head of the Law school of
Columbia University, Washington. In addition to a pressing law
practice, three evenings of the week, for many years, have found
him in his place as the instructor of the intelligent, and in many
cases, hard-worked young men, who with other employments by
day, studied law with Judge Cox of nights. Judge Cox is a slight,
delicate-looking man, whose strong features and fine head indicate
a mentality more potent than any mere physical force could ex-
press. He is somewhat bald, has mild blue eyes, a Roman nose and
an expression entirely benevolent. Said a friend: T cannot see
how a man can amount to so much and assert himself so little.'
This was the quality that brought down upon him so many ana-
themas during the Guiteau trial." The Independent, Id.

xvi PREFACE TO VOLUME FOURTEEN.

to do this. But a great authority on criminal law has
defended his course in this respect, saying :

"There can be now no question that giving Guiteau full liberty in
the court-room greatly conduced not only to the promptness and
early unanimity of the action of the jury, but to the universal ap-
proval with which that verdict has been met. I confess that when
the prosecuion opened I had much doubt whether a conviction
could be secured; and I believe that the general sentiment then was
that the case was on the border-line and that the jury could not be
expected to agree. This feeling, however, was gradually dispelled
by Guiteau's course during the trial. Undoutedly he showed great
vanity and great ignorance, so far as the higher conditions of
knowledge are concerned. But he showed abundantly that he acted
in the tragic homicide perpetrated by him with a motive, which,
however preposterous and villainous, was nevertheless as sane as
are the motives of other criminals who take human life to gratify
personal or political revenge and with a full knowledge of the un-
lawfulness of his act. He proved on the trial that he was as sane
as are the greater body of ruffians by whom life is taken; and he
proved also that if the defense of insanity was good in his case,"
there are few cases of atrocious crimes in which it could not be sus-
tained. Had he been removed from the court-room or gagged, as was
proposed, this condition would not have existed. Even if convicted
there would have been many who would have felt that the case was
still one of doubt, and there would have been few who would have
regarded the conviction and execution with entire approval."9

There have been several trials for piracy and murder
on the high seas in this series, not only in Colonial days,
but later, but none are more interesting in their facts
than that of Bird and Hansen (p. 232). Yet the chief
reason for its inclusion here is that it is the first capi-
tal conviction under the U. S. Constitution. And no
delay in disposing of the criminal marred the record of
this prosecution. Captain Bird was put on trial at the
end of the first week of June, and on the last Friday of
the same month, after a most fair trial and an appeal to
President Washington, who then had his residence in
New York, he was hanged.

The guilt of the Kennistons (p. 237) was believed in

s Dr. Francis Wharton, in 10 Fed. Rep.

PREFACE TO VOLUME FOURTEEN. Xvii

by the whole community, and they owed their acquittal,
though unquestionably innocent, to the marvelous cross-
examination and skillful presentation of the case to the
jury by Daniel Webster. Unfortunately the reports of
the trial, which have been preserved, do little to show
either. Major Goodridge's motive in making public his
dramatic story has never been known, but he left the
State very soon, a disgraced man. Twenty years after-
ward, Mr. Webster was traveling in the western part of
New York; he stopped at a tavern and went in to ask
for a glass of water. The man behind the bar exhibited
great agitation as the traveler approached him and when
he placed the glass before Mr. Webster his hand trem-
bled violently, but he did not speak. Mr. Webster drank,
turned without saying another word and reentered his
carriage. The man was Goodridge.10

William Lloyd Garrison (Trial of, p. 291), in an
abolitionist newspaper in Boston violently attacked a
Yankee ship-owner, in whose vessel some slaves had
been carried from Maryland to Louisiana. He described
them as being chained below decks, suffocating for want
of air, without water and half starved and beaten
cruelly when they complained. As a fact they were car-
ried as well as ordinary emigrants. Indicted for libel,
he was totally unable to prove his statements and was,
of course, convicted and sent to prison.

Mr. Garrison, in the next issue of his paper, published
the names of the jurors and "damned their names to
everlasting fame." He regarded his trial as a mockery
of justice; he maintained that liberty of the press had
been assailed in his prosecution; that the Baltimore
press in not protesting against it showed their "abject

10 Curtis. Life of Webster, vol. 8.

xviii PREFACE TO VOLUME FOURTEEN.

servility, their craven spirit, their cormorant selfishness,
their stagnant quiescence and their fear of the Judge,
the loss of an advertisement, or the withdrawal of a sub-
scriber." He violently attacked the Judge, saying :

"His frowns cannot intimidate me or his sentence stifle my voice
on the subject of African oppression. He does not know me. So
long as a good Providence gives me strength and intellect I will not
cease to declare that the existence of slavery in this country is a
foul reproach to the American name; nor will I hesitate to pro-
claim the guilt of kidnappers, slave abettors or slave owners, where-
soever they may reside or however high they may be exalted. I
am only in the alphabet of my task; time shall perfect a useful
work. It is my shame that I have done so little for the people of
color; yea, before God I feel humbled that my feelings are so cold
and my language so weak. A few white victims must be sacrificed
to open the eyes of this nation and to show the tyranny of our
laws. I expect, and am willing, to be persecuted, imprisoned and
bound for advocating the rights of my colored countrymen; and I
should deserve to be a slave myself if I shrunk from that duty or
danger."

During his imprisonment he spent most of his time
preparing anti-slavery addresses which on his release he
delivered to audiences from Baltimore to his home in
Massachusetts. By the Abolitionists he was regarded as
a martyr in a righteous cause, and by his enemies he
was regarded as a "convicted felon." In the other aboli-
tionist newspaper, The Liberator, he said in the issue of
January 15, 1831 :

"In advertising the conduct of Mr. Todd and Capt. Brown in
the affair of the Francis, I was actuated by no personal hostility.
If any of my warmest friends or any other of my fellow-townsmen
had been implicated in this or a similar transaction, they would
have felt the same scorpion lash. In the publication of my stric-
tures I was governed by the following motives: 1. A sense of
duty as an advocate of freedom and a hater of tyranny and of all
its abettors. 2. A desire to evince to the southern people, that in
opposing slavery I disregarded all sectional feelings; and that a
New England abettor was as liable to reprehension as a Maryland
slave-holder. 3. A belief that the publication would ever after-
ward deter Mr. Todd from venturing into the domestic slave-trade;
and that it would be a rod over the backs of New England mer-

PREFACE TO VOLUME FOURTEEN. xix

chants generally. Having proved on my first trial, my main charges
— viz: that the Francis carried away the slaves, and even 13 more
than I had stated — that the ship was owned by Mr. Todd and that
he was privy to the transaction — I determined to incur no expense
and to give myself no trouble, in relation to the second suit. I
knew that my judges must be men tainted with the leprosy of op-
pression with whom it would be useless to contend — men morally
incapable of giving an impartial verdict from the very nature of
their pursuit. And here let me observe, en passant, that I do not
say that a packed jury has convicted me, yet knowing as I do how
juries are selected in Baltimore, and recognizing also some of my
condemners, I consider my trial as having had all the formality,
but none of the substance, of justice. I do not care whether the
slaves were bought expressly for the New Orleans market or for
Milligan's own use, it does not alter the aspect of the affair. If
they were to be sold they might get a better — they might get a
worse, master than Milligan. They are disposable property, and he
who bought them to make money would assuredly sell them for the
same reason whenever an opportunity presented itself. To say that
they were not intended for public sale is a contemptible quibble.
They were slaves, the creatures of an absolute despotism; they were
human beings entitled to all the privileges and enjoyments of liberty,
and no man could assist in their oppression without participating
in the guilt of the purchase. I regret that New England men were
engaged in the inhuman traffic, but not that I exposed them to
public censure. With regard to the truth of my allegation that
chains were used on board the Francis, it could not be substan-
tiated except by summoning the crew. Generally speaking, irons
are inseparable from the slave trade; nor is this usage a grievance
in the traffic. But I am now disposed to believe that no chains were
used on board the Francis.

The decision of the Court upon my trial forms the paradox of
paradoxes. The law says that the domestic slave trade is a legal
business and no more criminal than the most innocent mechanical
or commercial pursuit; and therefore, that any man may honestly
engage in it. Yet if I charge an individual with following it, either
occasionally or regularly, I am guilty of 'a gross and malicious
libel,' of 'defaming his good name, fame and reputation,' of 'foul
calumny and base inuendo,' with sundry other law phrases as set
forth in the indictment! So much for the consistency of the law!
So much for the equity of the Court! The trial, in fact, was not to
ascertain whether my charges were true, but whether they con-
tained anything disreputable to the character of the accused; and
the verdict does not implicate or condemn me, but the law.

The hat-making business, for instance, is an authorized trade.
Suppose I were to accuse a man of making hats and should believe
and publicly declare as my opinion that every hat-maker ought to
be imprisoned for life, would this be libelous? It is my belief that
every distiller or vender of ardent spirits is a poisoner of the health

xx PREFACE TO VOLUME FOURTEEN.

and morals of the community, but have I not a right to express this
belief without subjection to fine and imprisonment? I believe,
moreover, that every man who kills another, either in a duel or a
battle, is in the eye of God, guilty of his blood; but is it criminal
or punishable to cherish or avow such an opinion? What is free-
dom of thought or freedom of expression? It is my right — and no
body of men can legally deprive me of it — to interrogate the moral
aspect and public utility of every pursuit or traffic. True my views
may be ridiculous or fanatical, but they may also be just and benev-
olent. Free inquiry is the essence, the life-blood of liberty, and they
who deny men the right to use it are the enemies of the republic."

The trial of the New York Sheriff, Hubbard and the
jailer, Bell (p. 299), in 1815, clearly vindicated the
right of a lawyer to visit his client in jail. The Conrt
ruled rightly that every court of record has authority
to control her officers ; that the right to employ and con-
sult with counsel is one guaranteed to every man by the
constitution and that the affidavits of the sheriff and
jailer did not, in this particular case, sustain the fear of
escape or fraud on which the refusal to permit the attor-
ney to see his client had been based. The speech of the
Recorder in the New York Court of General Sessions is
worthy of note and the judgment of the Court in favor
of the attorney, McClelan, is to be commended on prin-
ciple.

The crime of Grace Lusk ( p. 316 ) was apparently the
result of what has frequently been called a "brain
storm." Her lawyers made a strong plea for her ac-
quittal of the murder of the wife of her paramour, on the
basis of hereditary insanity. There seems little doubt
that she was temporarily out of her mind when she shot
Mrs. Roberts, but the law does not take cognizance of
temporary insanity and it is not a good defense for mur-
der. The accused woman in this case represented a cer-
tain class of modern, overeducated women of nervous,
psycopathic type. After being graduated at a leading
university and serving on an important educational

PREFACE TO VOLUME FOURTEEN. xxE

commission to Europe, she found teaching in a small
city in Wisconsin somewhat unexciting. Being thrown
with a wealthy and prominent man of middle age, Dr.
Roberts, she fell violently in love with him and carried
on a clandestine and somewhat vulgar intrigue that in-
cluded trips to hotels in Chicago and Milwaukee. The
doctor seemed finally to be tired of the affair and Miss:
Lusk, desperate and partially disillusioned, tried to
force him to divorce his wife and marry her to restore
her good name. Finally she persuaded Mrs. Roberts
to come to her boarding-house and insisted that the wife
should relinquish her husband. A violent quarrel en-
sued and procuring a revolver, which she had been keep-
ing in her possession for some time, Miss Lusk shot and
killed Mrs. Roberts. Although she claimed at the trial
that she remembered nothing about the shooting, the
jury found her guilty and sentenced her to prison for a
long term. Her vicious attack on the prosecuting attor-
ney after sentence was pronounced, led to a special
examination at the order of the Court as to her sanity.
A medical commission reported, however, that she was
quite sane and the sentence was affirmed and carried
out. The speeches of the attorneys and the charge of the
judge to the jury are interesting from the viewpoint of
insanity as a plea for the acquittal for murder.

The trial of James Dalton (p. 492) for False Pre-
tense in the matter of securing three tubs of butter from
a New York ship-owner, in 1823, is an illustration of the
intricacies of the commercial criminal law. Dalton was
clearly guilty but his lawyers won him a new trial by
contending successfully, in the opinion of the Court,
that a false statement or pretense, in order to be punish-
able, must be the sole inducement for the parting of
property. As the ship-owner testified that he would not

xxii PREFACE TO VOLUME FOURTEEN.

have trusted Dalton on the false pretenses alone, and as
the motive, which in addition to the false pre-
tense, operated on the mind of the seller when he gave
credit to Dalton, may have constituted part of the res
gesta, the Court ruled in favor of a new trial.

The first (p. 505) and second trials (p. 530), in 1824,
of Joseph Buckingham, editor and publisher of the New
England Galaxy of Boston, for libel, are interesting
examples of early, nineteenth century procedure in such
cases. The first trial in the Municipal Court of Boston
resulted in a partial conviction of Buckingham, but an
appeal was successful. The second trial ended in his
having to serve thirty days in jail and pay all the costs
of the prosecution. The ruling of the trial Judge that
the truth of the libel was admissible to rebut malice in
the cases only where the publication was made in the
public interest, conformed to the law of Massachusetts
by which the truth of the words used was no justifica-
tion in a criminal prosecution for libel. As the libel
had to do with the conduct of the Russian Consul at
Boston at a dancing assembly, there could be no claim
of public interest in the matter.

Isaac Cotterall and his chum (p. 548) should have
been indicted for breaking jail and not for arson. Their
main intent was not to burn the place but to get out
of it. An English sailor on a ship laden with rum, sugar
and cotton ( and sailors have always had a weakness for
the first two articles ) in the dead of night bored into one
of the barrels with a gimlet, but when he tried to stop
up the hole he had to light a match which ignited the
liquor, destroying the ship. Indicted for arson the
Court held him not guilty. He had intended to steal the
rum but he had not intended to set the ship on fire. The
alleged crimes of both him and Cotterall were simply

PREFACE TO VOLUME FOURTEEN. xxiii

the result of another crime that they intended to com-
mit. For breaking jail, as it is popularly called, is a
crime. The poet who remarked that stone walls do not
a prison make, nor iron bars a cage, was right, for
people so often get free of them that the law has had to
supplement bolts and locks with a heavy penalty for
evading them. Such efforts are in legal terminology,
either escape, prison breach or rescue. Where he effects
his freedom himself without force (as Napoleon III did
from the Fortress of Ham), it is an escape; when he
breaks out with force, as where he breaks the bars or
locks or digs a tunnel, as did Dumas' Edmond Dtantes
in the Chateau D'lf, it is a prison breach, and where it
is effected through assistance from the outside, as were
the Fenian prisoners in the Birmingham jail, it is a
rescue.

A somewhat peculiar incident of these offenses is that
it will not save him that is perfectly innocent of the
charge on which he was imprisoned. A good many years
ago, the soldier-poet of Kansas permitted the editor to
print in a little volume on the criminal law, this very
clever version in rhyme, of a Supreme Court decision on
this point.

STATE VS. LEWIS.

(19 Kas. 266.)

Laio-Paw-Guilt-Wilt.

When upon thy frame the law
Places its majestic paw,
Though in innocence or guilt,
Thou art then required to wilt.

The defendant while at large
Was arrested on a charge
Of burglarious intent,
And direct to Jail he went.

xxiv PREFACE TO VOLUME FOURTEEN.

But ho somehow felt misused
And through prison walls he oozed,
And in some unheard of shape,
He effected his escape.

Mark you now, again the law,
On defendant placed its paw
Like a hand of iron mail,
And resocked him into jail.
Then the Court met and they tried
Lewis up and down each side,
On the good old-fashioned plan;
But the jury cleared the man.

Now you think that this strange case

Ends at just about this place.

Nay, not so. Again the law

On defendant placed its paw.

This time takes him round the cape

For effecting an escape.

Lewis tried for this last act

Makes a special plea of fact.

"Wrongly did they me arrest,

As my trial did attest.

And while rightfully at large,

Taken on a wrongful charge,

I took back from them, what they

From me, wrongly took away."

The Prisoner's Lawyer.

As a matter, Sir, of fact,
Who was injured by our act?
Any property or man?
Point it out, sir, if you can.

Can you seize us when at large
On a baseless, trumped up charge,
And if we escape, then say,
It is crime to get away,
When we rightfully regained
What was wrongfully obtained?

The State's Lawyer.

When the State, that is to say,
We, take liberty away,
When the padlock and the hasp
Leaves one helpless in our grasp,

PREFACE TO VOLUME FOURTEEN. xxv

It's unlawful, then, that he
Even dreams of liberty;
Wicked dreams that may in time
Grow and ripen into crime.
Please the Court, sir, how can we
Manage people who get free?

The Court.

We don't make law, we are bound
To interpret it as found.
The defendant broke away,
When arrested he should stay.1*

Such a sordid and mercenary crime as that of the
murder of the elderly Mrs. Griswold of Burlington, Ver-
mont, in 1866, by John Ward (p. 553), justly deserves
to be execrated and severely punished. It shows for
what little gain or recompense men of desperate char-
acter will commit atrocious crimes against persons
whom they have never seen before, much less received
injuries from. In this case the murderer, Ward or La-
vigne, was a man of intelligence, but of thoroughly
vicious and debased character. Associated in the charge
against Ward, as an accessory to the murder, was the
murdered woman's son-in-law, Potter, who was accused
of instigating the crime and purchasing the services of
Ward and his gang. The case has many interesting fea-
tures of law and procedure, although the addresses of
the counsel on both sides, to the jury, have not been pre-
served. The Judge's charge is brief but to the point
and is a good illustration of the criminal law of that
day. Before his execution, Ward made a full, but prob-
ably not entirely trustworthy, account of his life of
crime and a confession of his guilt.

Has it come to this, in the Republic that Washington
founded and the Democracy that Jefferson saw and

"Eugene F. Ware.

xxvi PREFACE TO VOLUME FOURTEEN.

which he dreamed would, in a century, ripen into a
greater and more complete freedom, that today a modern
poet can write :

Throned high upon a soap-box Demos rules,
And mumbles decalogues: Thou shalt not read
Save what I tell you, never books that tell
Of men and women as they live and are,
Thou shalt not see the dramas that portray
The evil passions and satiric moods
Which mock the Christian nation and its hope.
Thou shalt not drink, not even wine and beer.
Thou shalt not play at cards or see the races,
Thou shalt not be divorced, thou shalt not play.
Thou shalt not bow to graven images
Of beauty cut in marble, fused in bronze.
Behold my name is Demos, King of Kings,
My name is legion, I am many, come
Out of the sea where many hogs were drowned.
And now the ruler of Hogocracy
Where in the name of freedom hungry snouts
Root up the truffles in your great Republic,
And crunch with heavy jaws the legs and arms
Of people who fall over in the pen.

Doomsday Book (Masters) 1920.

Laws like this never fail to make it easy for the rich
and especially hard for the poor man. Just as our pres-
ent Prohibition Law permits the rich man to have all
the wine and whiskey he wants in his cellar, but pun-
ishes the poor man if he is found with a single bottle in
his lodgings ; so, when the Sabbath keeping crusade had
been at its height, the judges (who were accustomed in
those days to ride in their carriages) said that it was a
work of necessity for a servant to drive his master in a
carriage. But there was no necessity for a poor man
who could afford but a nickel for transportation, on
that day to ride at all, and therefore until special stat-
utes were passed permitting it, it was a crime to run a
street car on Sunday. One Chief Justice of Pennsyl-
vania let the cat out of the bag when he declared : " What

PREFACE TO VOLUME FOURTEEN. Xxvii

is a mere luxury or entirely useless and burdensome to
a savage may be a necessity to a civilized man. What
may be a mere luxury or pleasure to a poor man, may
be a necessity when he has grown rich." Com. v. Nesbet,
34 Pa. St., 398.

An Indiana farmer, who was a good many miles from
his market and who had, one Sunday in August, several
hundred watermelons ripening so fast that before the
next market day most of them would be spoiled, started
to town with a load. A jealous neighbor had him ar-
rested, but all the judges of the Supreme Court declared
that he was engaged in a work of necessity. "It was his
duty as a prudent and careful husbandman to labor
diligently in getting as many of his melons to market
as he could, so that the fruits of his toil might not be
wasted or suffer to decay." Wilkinson v. State, 59
Ind. 416.

The editor has known more than one Judge who con-
sidered a morning cocktail a necessity, but no Court has
had the bravery to declare this judicially, though more
than one has, when it came to a man's daily cigar. See
State v. Carver, 69 Ind. 61.

It seems all to depend on the length of the Chancel-
lor's foot and the personal habits of the Court in which
the unfortunate and wicked defendant finds himself. For
yes and no have been the answers respectively to these
questions by judges in different parts of the land. Is it
a crime to play baseball on Sunday? To play golf? To
shave a man? To mend someone's trousers? (Trial of
Joseph Neet, p. 583.)

Of the Puritan Sunday something has been said in a
former volume.12

Mr. Henry B. Hagerman (p. 599), being himself a

12 Preface to Vol. XIII, Am. St. Tr.

xxviii PREFACE TO VOLUME FOURTEEN.

lawyer, should have known better than to make a vi-
cious, public assault on an editor of a New York news-
paper. Instead of beating Coleman into insensibility
with the butt-end of a heavy whip, he should have
brought an action for libel against the editor. The af-
fair proved costly for the lawyer, who was found guilty
of assault and had to pay costs and damages amount-
ing to over four thousand dollars. Mayor Colden who
presided at the criminal trial for assault, severely con-
demned the prisoner and pointed out forcibly that:

"In this community the law is open for the redress
of every injury; and if instead of having recourse to
legal measures, men, in pursuance of your example,
should undertake to avenge their own wrongs, the do-
minion of the laws would be subverted and disorder
and confusion prevail."

These are wise words and might well be taken to
heart by citizens of American communities today, who
at times disregard legal processes and take the law
into their own hands.

There is a strong melodramatic tinge to the story of
the trial of Albert W. Hicks (p. 625) for Piracy,
coupled with three murders on the high seas. The
crime was a sensational one and the pirate and mur-
derer, after being convicted and sentenced to death,
made a most remarkable confession, which, if true,
stamped him as a confirmed desperado and "deep-dyed
villain." In 1860 New York City was much stirred up
by the case and a contemporary pamphlet gives full
details and even pictures of the crime. The day of his
execution on Bedloe's Island was the occasion of a
grand excursion in New York harbor to witness the
hanging. It was a veritable "Roman holiday" for a cer-
tain class of New Yorkers and their female friends.

PREFACE TO VOLUME FOURTEEN. xxix

The official steamboat chartered by the Federal author-
ities to convey to the island the criminal and the offi-
cers of the law, was laden with city politicians and their
followers, while a vast fleet of excursion boats loaded
to the water's edge, enlivened the proceedings. The
scene must have been a curious one and it illustrates
the crudity of American civilization in the middle of
the last century. It could hardly be repeated today.

The belligerent Quakers in Massachusetts (Trial of
Benjamin Shaw and others, (p. 657), were charged both
with Riot and Disturbing Religious Worship and were
equally guilty of both. A Riot is the disturbance of the
peace by three or more persons, to carry out some intent
to the terror of the people. It is the culmination of
two other offenses called Unlawful Assembly and Rout.
And it takes three to effect it; if two men fight on the
street, it is not a Riot, but an Affray. An Unlawful
Assembly is a meeting of three or more people for the
purpose of committing an illegal act. A Rout is the pro-
ceeding to do this. A Riot is doing it. A, B and C
meet at A's house for the purpose of beating D, who
lives a mile away. They go together to his house and
beat D. At A's house it is an Unlawful Assembly ; on the
road it is a Rout ; at D's house it is a Riot.

We have already witnessed a trial for Disturbing
Religious Worship, that of the unwise Degey (2 Am.
St. Tr. 171), who undertook to contradict the minister
in the pulpit. One Ramsay in a church in North Caro-
lina, acted just as Mr. Shaw did and had to suffer
the same penalty. He got up in his pew and began to
relate his grievances. The parson tried to stop him,
but it was no good and he had to be forcibly ejected
before the service could proceed. Even if a member
is given permission to speak he must do so in a proper

xxx PREFACE TO VOLUME FOURTEEN.

manner. Mr. Lancaster of Alabama, having obtained
leave of the minister to speak, delivered this startling
address: "I neither rise to preach, pray or sing; but
I want to talk to the church. I have meditated,
thought and prayed to know what I ought to do. I de-
mand my letter. I cannot live in the church with liars,
thieves, rogues and murderers." The Supreme Court
of the State to which he appealed held that he was
properly convicted.

The cases of this kind in the reports of the Appellate
Courts are very amusing, as where a profane person
swore in the ear of a Methodist hearer, though no one
else in the congregation heard him; where a lot of big
boys laughed, cracked nuts and cursed in church and
some others swore, fought and threw stones in the yard
outside while the congregation was dispersing, and
where a member disturbed, after service, an assembly
of church authorities that were engaged in the trial of
a fellow member. A profane law writer has taken issue
with this last case, saying that it is not easy to see
how such an assembly can be construed as one for the
worship of God, as it is generally an assembly for the
purpose of raising the Devil and as difficult to disturb
as an average political caucus.

But disturbing the sleep of religious people after
they come from service is not within the law, and a
bad singer may disturb the congregation with impunity.
This was the case of Mr. Linkaw of North Carolina,
who when he joined in the hymns, "made one part laugh
and the other mad. The irreligious and frivolous en-
joyed it as fun, while the serious and devout were in-
dignant." Once the preacher shut up his book and de-
clined to go further and once the presiding Elder re-
fused to preach there on account of it. Linkaw was a

PREFACE TO VOLUME FOURTEEN. xxxi

strict Methodist, and when expostulated with replied
that he "would worship his God and as a part of his
worship it was his duty to sing." A witness on the trial
sang a verse in his style and manner which "produced
a burst of long and irresistible laughter, convulsing
alike the spectators, the bar, the jury and the Court."
Notwithstanding the jury found him guilty, the decision
was set aside by the Supreme Court because he had
no bad intent in the way he sang.13

Could the preacher himself, who in the pulpit is lord
of all he surveys, with no one before him who can an-
swer him without committing a crime, as we have seen
in Degey's case — could the preacher ever be guilty him-
self? The editor has answered in another book. Yes,
very probably, should he unnecessarily dwell on the
sins of his hearers in such a personal way as to cause
them to call him to order or to take to the doors.14

There were many strange and desperate efforts made
to injure the North by Confederates in the closing-
years of the Civil War. The trial of John Y. Beall
(p. 683) for violation of the rules of war and acting as a
spy is an interesting illustration of southern fanati-
cism. At the time of Beall's activities on Lake Erie
the cause of the Confederacy was clearly lost, and
such foolish and futile efforts as those of Beall, Burley,
Martin and others along the Canadian-United States
border were not only crimes but the utmost folly.
Beall's trial and execution in 1865 produced much in-
terest in both the United States and Canada, and were
extensively commented upon. Also, in 1915, an emi-
nent Canadian jurist, Mr. Justice Riddell of Toronto,

is See State v. Ramsay, 78 N. C. 450. Lancaster v. State, 53 Ala.
389. Hunt v. State, 3 Tex. App. 116. State v. Edwards, 32 Mo. 550.
Hollingsworth v. State, 5 Sneed, 518. State v. Linkaw, 69 N. C. 214.

i* Criminal Cases Simplified, 114.

xxxii PREFACE TO VOLUME FOURTEEN.

revived interest in the case by an article entitled "A
Court Martial Fifty Years Ago." There is little ques-
tion but that Beall received a fair and just trial and
that the sentence of death was deserved under the
rules of war. It was a tragic fate for the young South-
erner, he being but thirty years of age, to suffer, but he
took the risk, foolish as it was, and had to suffer the
penalty. The trial is an interesting example of pro-
cedure before a Military Commission or Court Martial.

TABLE OF TRIALS.

Page
The Trial of CHARLES J. GUITEAU for the Murder of

PRESIDENT GARFIELD, Washington, D. C, 1881 . 1-158

The Trial of LEON F. CZOLGOSZ for the Murder of PRESI-
DENT McKINLEY, Buffalo, N. Y., 1901 .... 159-231

The Trial of THOMAS BIRD and HANS HANSEN for Pi-
racy and Murder, Portland, Maine, 1790 . . . 232-236

The Trial of LEVI and LABAN KENNISTON for Robbery,

Ipsivich, Massachusetts, 1817 - 237-290

The Trial of WILLIAM LLOYD GARRISON for Libel, Bal-
timore, Maryland, 1830 291-298

The Trial of RUGGLES HUBBARD and JAMES L. BELL,
Sheriff and Jailor, for preventing an attorney from en-
tering the jail to see a client, New York City, 1815 . 299-315

The Trial of GRACE A. LUSK for the murder of MRS.

NEWMAN ROBERTS, Waukesha, Wisconsin, 1918 . 316-491

The Trial of JAMES DALTON for False Pretense, New York

City, 1823 492-504

The Trial of JOSEPH T. BUCKINGHAM for Libel, Boston,

Massachusetts, 182Jt 505-529

The second Trial of JOSEPH T. BUCKINGHAM for Libel,

Boston, Massachusetts, 1824 530-547

The Trial of ISAAC COTTERAL and PETER CRANNEL

for Arson, Troy, N. Y 548-552

The Trial of JOHN WARD for the Murder of MRS. EPH-

RIAM GRISWOLD, Burlington, Vermont, 1866 . . 553-582

The Trial of JOSEPH NEET and others for Sabbath Break-
ing, Lexington, Missouri, 1899 583-598

The Trial of HENRY B. HAGERMAN for Assault with in-
tent to murder, New York City, 1818 .... 599-624

xxxiii

XXXiv XIY. AMERICAN STATE TRIALS.

Page
The Trial of ALBERT H. HICKS for Piracy, New York City,

1860 625-656

The Trial of BENJAMIN SHAW, JOHN ALLEY, Jr., JONA-
THAN BUFFUM and PRESERVED SPRAGUE for Dis-
turbance of Public Worship and Riot, Ipswich, Massa-
chusetts, 1822 657-682

The Trial of JOHN Y. BEALL for Violation of the Rules of

War and acting as a Spy, New York City, 1865 . . 683-751

THE TRIAL OF CHARLES J. GUITEAU FOR

THE MURDER OF PRESIDENT GARFIELD,

WASHINGTON, D. C., 1881.

THE NARRATIVE.

In the summer of 1881 President Garfielda arranged to
make a trip through the Eastern states, a principal feature of
the journey being a visit to his alma mater, Williams College.

a James Abram Garfield was born in a log cabin twelve miles
from Cleveland, O., on Nov. 19, 1831. When he was two years old
his father died leaving the family in straightened circumstances.
By the time the son reached the age of seventeen he had worked
as a farm-hand, carpenter's helper and boatman. He devoted all of
his spare time to study with the result that he was admitted to
Williams' College in 1854, where he paid his tuition from his sav-
ings. Two years later he was graduated with the highest honors.
He was then made professor of Latin at the Hiram Institute and
at the age of twenty-six he was appointed president of this college.
In 1859 he was elected State senator of Ohio. The civil war break-
ing out he was appointed Lieutenant-Colonel of the 42nd Ohio regi-
ment on Sept. 25, 1861, and on December 17th was placed in com-
mand of the 17th Brigade. In January he was promoted to the
rank of Brigadier-General, and in October, 1862, was made Major-
General of Volunteers for gallant conduct at the battle of Chick-
amauga. In 1862, while he was still in the army, he was elected
to Congress, and in December, 1863, he reluctantly resigned his
commission to accept his seat. He was a member of the Electoral
Commission of 1877. While still serving as Congressman he was
elected to the United States Senate in January, 1880. .At the Re-
publican National Convention held in Chicago in June, 1880, he was
nominated for president. Elected in November, 1880, and inau-
garated 20th president of the United States on March 4th, 1881.
He had served less than four months when he was shot down by the
assassin's bullet.

(1)

2 XIV. AMERICAN STATE TRIALS.

Mrs. Garfield, who was recovering from a severe illness and
who had been for some weeks at Long Branch, was to join
him at New York. On the morning of July 2nd, the Presi-
dent, accompanied by Secretary of State, Blaine, drove to the
station, another carriage containing several members of his
cabinet, his secretaries and his children, preceding him.
The President and Mr. Blaine walked leisurely through the
waiting-room arm in arm and had gone but a short distance
when two shots were fired in quick succession. At the second
shot the President turned quickly and fell heavily to the
floor, the blood flowing rapidly from a wound in his side.
Secretary Blaine turned toward the assassin, but discovering
that he had been seized, gave his attention to his prostrate
chief. Medical aid was at once summoned and he was taken
to the White House where he remained until the 6th of Sep-
tember when, as a last hope, he was removed to Elberon on
the New Jersey coast, where he died September 19, deeply
mourned by the nation and the civilized world.

The assassin attempted to escape by the door of the wait-
ing-room, but being seized and seeing that resistance was im-
possible, he declared that he had fired the shots, exclaiming:
"I am a stalwart and Arthur is president." He handed a
letter to his captors addressed to General Sherman, in which
he requested that troops be sent to the jail to protect him, and
later issued what he called an address to the American people
in which he said: "I killed the President for the purpose of
reuniting the Eepublican party. His death was a political
necessity." His name was Charles Julius Guiteau. Living
by his wits he had in turn been an exhorter, the publisher of
a religious newspaper, an insurance agent, a disreputable
lawyer who kept most of the money he collected for his few
clients, a member of the Onieda community, a blackmailer
and always a ne'er-do-well. He was thirty-nine years old
and had about reached the end of his tether. The members of
his family were a curious lot — his father being a half-crazy
fanatic. His paternal grandfather claimed intimate rela-
tions with the Deity, believing he could cure disease by the

CHARLES J. GUITEAU.

laying on of hands. Other members of his family were in-
sane and epileptic.b

In the Republican National Convention which met in 1880
to nominate its candidate for the Presidency, there were two
factions — one determined that General Grant should have a
third term and the other bitterly opposed to him and to the
violation of General Washington's precedent. The latter
won, and after a fierce struggle, Garfield was nominated.
The Democratic candidate was General Hancock,c a hero of
the civil war, and campaign orators of every kind were
pressed into the service of both parties. Among others on
the Eepublican side appeared Guiteau, who seems to have
been allowed by the managers to make a few speeches and
who considered himself entitled, when the victory was won,
to a substantial reward. d After the inauguration of Presi-
dent Garfield he went to Washington, obtained interviews
with both him and Secretary Blaine, and though his absurd
claims to a consulship or diplomatic position were treated as
they could only be treated, he remained in the city for months
writing letters to the State department and hanging around
the Executive mansion and the public offices until he became
a practical nuisance. In the end he seems to have conceived

b Hamilton, post p. 84.

c See post p. 7.

d "Much has been, said of the ridiculous claims of Guiteau as to
the value of his services as a worker for the Republican cause. It
seems to have been the opinion of the late Dr. Folsom of Boston,
who believed him at least partly insane, that he only addressed
one meeting, and that an assembly of negroes. President Arthur
said that Guiteau addressed several meetings and delivered a few
speeches, and though rendering services that did not entitle him
to any great reward or preferment, had evidently done his part.
Mr. Blaine told me scarcely a year before he died that he reproached
himself with the thought that some of his party had led Guiteau
to expect rewards which were impossible, and he himself had tem-
porized to get rid of him. Anyhow the miserable wretch who had
lived by his wits for years and subsisted chiefly on the remnants
of free-lunch counters, took the flattering notion to himself that he
was to receive an important foreign consulship and that Mr. Hooper
(then occupying the post at Paris) was to be deposed that he,
Guiteau, might be sent to the French capital. After the election

4 XIV. AMERICAN STATE TRIALS.

an intense hatred of the President and to have determined
on the commission of the crime. He bought a cheap revolver,
practised at a mark for several hours, but being an arrant
coward, he desisted on several occasions when he saw the
President in public, because "there were others around him."
Finally when he went to the railroad station he hired a hack
to take him to the jail so that he might escape the vengeance
of the crowd.

His trial took place in Washington and lasted seventy-two
days. The court-room was crowded every daye and the

he haunted the State Department and wrote voluminous and fre-
quent letters of a boastful and conceited kind to the President and
Mr. Blaine and others calling attention to his claim, but only met
with snubs or repulses. Despondent and vengeful the idea of mur-
der suddenly entered the mind and heart of this miserable wretch.
Possibly there were other reasons for his resolution. While the In-
human suggestion that anyone deliberately instigated the murder
is not to be entertained for a moment, there is no doubt that
ignorant and idle tongues were at work, as they always are at such
times, and it is more than possible that Guiteau received some hint
and took it to heart.

When in Washington shortly after the trial I learned of this inci-
dent and have no reason to doubt its truth, for I was told by a
person who was present and saw the actions of the desperate assas-
sin. Two men prominent in official affairs during the Garfield
administration were conversing in a secluded corner of the Riggs
House, which this disappointed politician fairly haunted. They
did not talk so low but that a third person, who was sitting just
behind them, could hear every word uttered. That man was
Guiteau. In this conversation these two men related the commonly
known fact of the enmity existing between Roscoe Conkling and
President Garfield, and stated that whoever settled the difference
that existed would probably be rewarded beyond his wildest expecta-
tions. Guiteau grew more and more interested, taking the hint
literally. The paper he was reading slowly slipped from his hands
as he listened vaguely to the words which fell from their lips and
he at that time received his "inspiration". In a South or Central
American country his solution of the difficulty would have brought
its reward, but he had not to cut the Gordian knot in any such
semi-civilized place. His insanity, if any, consisted in the idea that
he should murder the head of a great nation who was, after all,
loved by the people, no matter how much he was hated by certain
politicians." Recollections of an Alienist (Hamilton), post p. 7.

e "Never before or since has there been such a trial in this coun-

CHARLES J. GUITEAU.

prisoner constantly interrupted the proceedings and insisted
on making speeches to the jury which the judge did not pre-
vent as he might have done by removing him from the
court-room, because he was of the opinion that Guiteau's
conduct there would give the jury the best opportunity it
could have for judging whether his defense had any founda-
tion to support it.

For his defense was insanity, that he had been "inspired"
by the Almighty, and directed by him to "remove" President
Garfield for the good of the Republic. But when the evi-
dence was all heard and the lawyers for the Government and
the prisoner had made their long speeches, and the judge
had delivered his learned charge, it took but a few minutes
for the jury to decide that he was as sane as most murderers
are who take human life to gratify personal or social or po-
litical revenge, with a full knowledge of the unlawfulness
of the act.

He was hanged in the United States jail at Washington
on June 30, 1882.

try, and the disorder at times must have resembled that of any revo-
lutionary gatherings in Paris of 1793. The audience consisted of
noisy patriots, negroes, fashionable women, actresses playing at
the time in Washington, the demi-mondaine, politicians, soldiers,
and the riff-raff of Washington. I spent three weeks in the foul
court-room breathing the worst of bad air emanating from the
diseased lungs of scores of dirty negroes and the unwashed bodies
of filthy loungers whose damp clothes fairly reeked with all sorts
of stinks. The windows were usually closed and the place was
heated to an insufferable degree. Many good men contracted dis-
eases and the trial had to be halted because of the illness of a jury-
man, and again by the illness of the wife of another. Not a few
died subsequently. Though Guiteau cursed us all it was not his
anathemas that did the work, but the mephic air. In this connec-
tion, however, superstitious persons have commented upon the un-
timely deaths of a number of participants, including Judge Cox,
the lawyers of the prosecution — District Attorney Corkhill, Judge
Porter and Mr. Davidge — several of the jurors and some of the
prominent experts. My dear friend, Dr. A. E. McDonald, died of
tuberculosis, evidently contracted at this time." — Hamilton.

XIV. AMERICAN STATE TRIALS.

THE TRIAL.1

In the Supreme Court of the District of Columbia, Wash-
ington, D. C, November, 1881.

Hon. Walter S. Cox,2 Judge.

November 14.
On October 14 the Grand Jury returned an indictment
against Charles J. Guiteau charging him with the murder

i Bibliography. "Report of the Proceedings in the case of The
United States vs. Charles J. Guiteau, tried in the District of Colum-
bia, holding a Criminal Term and beginning November 14, 1881. In
three parts. H. H. Alexander and Edward D. Easton, Official Stenog-
raphers, Washington; Government Printing Office, 1882.'"' This is in
three volumes of 1820 pages. It contains all the proceedings on the
trial stenographically reported in full, also the proceedings on ap-
peal and the opinion of Mr. Justice Bradley of the Supreme Court
of the United States denying the writ of Habeas Corpus and the
opinion of the Attorney-General on the petition for a reprieve.

"A Complete History of the Life and Trial of Charles Julius
Guiteau, assassin of President Garfield, by H. G. and C. J. Hayes,
Special Stenographic reporters for the N. Y. Associated Press.
Amply illustrated. Hubbard Bros., Publishers, Philadelphia-St.
Louis."

"The Truth and the Removal. By Charles Guiteau. Published
and sold only by the Author. Washington, D. C, 1882." The pref-
ace is by Mr. Scoville, his counsel, who says: "This volume was
published under the supervision of Guiteau during the trial. Of the
edition, one thousand, but few were sold during his life, the greater
part coming into my hands upon payment of a balance due the
printers." Mr. Scoville pleads that the book is evidence of the
author's insanity. " 'The Truth,' says Guiteau in his introduction,
'is my contribution to the civilization of the race and I ask for it
a careful attention to the end that many souls may find the Saviour.
A new line of thought runs through it and if it does not demon-
strate the existence of Heaven and Hell, I submit their existence
cannot be proved.' "

"Memorial Edition. The Life and Work of James A. Garfield,
Twentieth President of the United States. By John Clark Ridpath,
LL.D. Copiously Illustrated. Jones Brothers and Co., Cincinnati-
Kansas City, 1882." The last part of the book gives a minute
account of the last days of the President and of the Trial of the
Assassin.

"Points of Law for Lawyers and General Readers, suggested by
Guiteau's Case. Edited by Charles E. Grinnell, Editor of the

CHARLES J. GUITEAU.

of James A. Garfield, President of the United States, at the
City of Washington. It alleged that deceased was shot by
the prisoner on the 2nd day of July, 1881, and died on the
19th day of September in the same year. The indictment had
eleven counts. Some of them did not state the place of the
shooting and death ; others alleged that he was shot and died
in the County of Monmouth, in the State of New Jersey.

On October 14th the prisoner was arraigned and pleaded
not guilty.

George B. Corkhill,3 District Attorney, Walter D. Davidge*
and John K. Porter* for the United States.

American Law Review. Boston, Little, Brown and Co., 1881."
This pamphlet of 96 pages contains a series of essays by leading
law writers of the country as follows: Challenge to the Array
(Seymour D. Thompson, Judge of the St. Louis Court of Appeals).
Insanity as a Defense (Edward B. Hill, Assitant U. S. Attorney
New York). Jurisdiction in Guiteau's Case (J. H. Robinson, assist-
ant Solicitor of the Treasury, Washington). Another View of the
Jurisdiction in Guiteau's Case (Robert D. Smith, Boston). Opinions
of Jurors, Disqualification for Opinion or Bias. (Edward G. Mer-
riam, St. Louis, Author of Thompson and Merriam on Juries).
Confessions of Prisoners (Charles R. Darling, Boston). Morals and
Laws for Crime. (The Editor.)

"Recollections of an Alienist, Personal and Professional. By
Allan McLane Hamilton, M. D., LL. D., F. R. S. (Edin.) New York,
George H. Doran Co." Dr. Hamilton was one of the experts who
testified on the trial. See Post, p. 84.

Federal Reporter, Vol. 10, St. Paul, West Pub. Co., 1882.

"The Great State Trial. Guiteau, the Assassin. Full Details of
His Trial for the Murder of President James A. Garfield. The
Crime, Its Causes and Consequences. By George B. Herbert, Jour-
nalist and Author of the Life of General Winfield Scott Hancock,
etc. Profusely Illustrated. Published by Forshee and McMakin,
Cincinnati, Ohio.

2 See 8 Am. St. Tr. 42.

s Corkhill, George Baker (1838-1886). Born Harrison Co., Ohio,
When young removed to Mt. Pleasant, la. Graduated Iowa, Wes.
Un. 1859. Entered Harvard Law School 1860, but the next year
entered the U. S. army as Captain in Army of Potomac. Major
and Paymaster in 1864-65. At end of the war returned to Iowa and
was appointed clerk of the U. S. Court. Afterwards State's At-
torney judicial district of Keokuk and Burlington. Practised law
in St. Louis, Mo., and married daughter of Justice Miller of
Supreme Court. Editor Washington Daily Chronicle, 1872. Quit

8 XIV. AMERICAN STATE TRIALS.

George Scoville6, Leigh Robinson7 and Charles H. Reed8 for
the prisoner.9

journalism to practise law and in 1880 was appointed District
Attorney serving until 1884. Edited Law Reporter. Close friend
of Gen. Sherman. Died, Mt. Pleasant, la. See Reminiscences, Ben
Perley Poore, vol. 1, 1886. Washington Evening Star, July 7, 1886.
Washington Directory to 1886. Harvard Law School, Charles
Warner, vol 3, 1908. History of Henry Co., la., 1879. Harvard Law
Quinquennial, 1817-1904.

4 Davidge, Walter Dorset (1823-1901). Born, Baltimore, Md.,
Educated in Baltimore City College, and by private tutors. In
1843 removed to Washington. Studied law in office of Hugh S.
Legare and Clement Cox, Washington, D. C. Admitted to bar of
Circuit Court, 1844, and of Supreme Court, 1850. His first law
partner was Thomas S. Semmes (afterwards Attorney-General).
Later formed partnership with Christopher Ingle; then with his
eldest son, Walter D. Davidge, Jr., the firm name being Davidge
& Davidge until his death. Married Anna Louisa, daughter of Dr.
Barclay Washington of the U. S. Navy and a lineal descendant of
John Washington, the great-grandfather of George Washington.
Founded the Bar Association of D. C. (1866), becoming its first
President. Died in Washington, D. C. See Nat. Cyc. of Am. Biog.,
1906. Washington Evening Star and Post of Oct. 8, 1901.

s Porter, John Kilham (1819-1892). Born, Saratoga Co., N. Y.
Educated in Lansingburgh Acad, and at Union Coll., graduating
there in 1837. Studied law under Nicholas B. Doe and Richard B.
Kimball, shortly afterwards becoming a member of that firm.
Admitted to practice 1840. Member Constitutional Convention, 1846.
Judge of N. Y. Court of Appeals. In 1867 LL. D. Union Coll.
Member Phi Beta Kappa. See "Our County," a Record of Saratoga
Co. (G. B. Anderson), 1890, vol. 7 Am. St. Tr., 895. Resigned and
removed to New York to engage in practice (Porter, Lowrey,
Loren & Stone).

s Scoville, George W. (1824-1888). Born, Pompey, N. Y. When
twelve years old removed to Ohio. Entered Yale Un. 1846. Studied
law, 1848 was admitted to Albany Bar, N. Y. Traveled for three
years in the West. Began in Chicago practice of law, 1851. Was
brother-in-law of the assassin. Died in Chicago. See Bench and
Bar of Chicago, 1883. Yale Coll. Cat., 1846-1847. Ridpath, J. C,
Life and Work of Garfield (1882). Chicago Directory, 1888. Sco-
ville, George!, lawyer, 1889; Scoville, Ellen, widow of George.
Harper's Weekly, 1881 (V. 25-801), with photo.

"Scoville was of the type of the abusive provincial lawyer but was
much in earnest and, despite his constant violation of the ethics
of the profession and exhibitions of bad taste, fought valiantly for
his unfortunate relative who gave him a great deal of trouble. Like
all men more or less ignorant of psychiatry, he confidently asked

CHARLES J. GUITEAU.

Mr. Corkhill said that the Government was ready to proceed to
trial.

Mr. Robinson said that he was here because he had been assigned
by the court to defend the prisoner. At that time the eminent
counsel now assisting the District Attorney had not been retained
by the Government. He therefore asked for time in which to
obtain counsel to assist him.

Mr. Scoville had stated that he was not familiar with the practice
of criminal law. The relationship of that gentleman to the accused
also disqualified him, in the estimate of many, from rendering that
assistance which he required as an associate. There were three

questions of opposing experts that got him into trouble." Recollec-
tions of an Alienist (Hamilton), p. 357, ante p. 7.

7 Robinson, Leigh. Born, Richmond, Va., 1840, and was educated
there. Joined the Confederate Army and served until the end of
the war. Removed to Washington, D. C, and was admitted to the
bar in 1871.

s Reed, Charles Habvey (1834-1892). Born, Wyoming Co., N. Y.;
educated at Springfield, N. Y., and New Haven, Conn. Studied law
at Lancaster, N. Y., and Kewanee, 111. Admitted to bar (Kewanee)
1859; removed to Chicago I860; Assistant State's Attorney Cook
Co. 1862, State's Attorney 1864-1876. At the close of the Guiteau
trial he removed to New York City, but misfortune followed him
and he removed in 1887 to Baltimore, Md., where he died. He was
three times married.

"The news of the death of Charles H. Reed, at Baltimore, formerly
one of the best known members of the Chicago Bar, will be received
with general surprise in this city. He had disappeared so com-
pletely from the public view and so many reports had come in the
last two or three years of his mishaps and vicissitudes that it was
generally expected he was dead some time ago. During his Chicago
career few men were better known than he. Physically prepossess-
ing, able and adroit as a lawyer, successful as a public prosecutor,
hearty in his companionship and rarely gifted as a classical scholar,
he had one of the qualities which should have made him one of
the most useful and widely respected citizens of Chicago. He had
not, however, the ability to withstand prosperity and the moral
element of his nature was so weakened that his mental gifts were
of little consequence. He left the city under a cloud of financial
dishonesty and violated trusts, and from that time misfortune fol-
lowed him. Continual failure only induced worse habits of dissi-
pation, involving ill-health and poverty until, at last, he became a
complete wreck. Few men in Chicago had brighter opportunities
than Mr. Reed, and few men have so deliberately and recklessly
thrown them away." Chicago Tribune, April 26, 1892.

s Later Mr. Robinson withdrew from the case and Mr. Reed
succeeded him. See Post, pp. 36, 105.

10 XIV. AMERICAN STATE TRIALS.

material witnesses for the defense who could not be here before
December. He would file an affidavit of this.

Ouiteau. Your Honor, I am charged here with a murderous
offense and I desire to be heard in my own defense.

The Court. This is not a proper time. You have Counsel.

Guiteau. I do not wish further time. We are ready to try this
case now.

Mr. Corkhill insisted on the trial going on now.

Mr. Scoville. This is an unprecedented proceeding. I have under-
taken in good faith to prepare for this defense. I have my witnesses
subpoenaed and have done my best to be ready. I understand that
I am not competent for a criminal trial of this kind. I supposed
that with the assistance of Mr. Robinson we could safely go to trial.
I shall withdraw from the case if the defense is to proceed in this
manner. I do not want to have this case continued, nor does the
prisoner. I do not know the gentlemen who Mr. Robinson says have
been consulted. I have had no communication with Mr. Robinson
for the last four days, although I have sought him.

Guiteau. I indorse every word of that and I tell Mr. Robinson
that if he does not do this thing just as I want it done he can get
out of the case. That is short.

Mr. Robinson. I must

Guiteau. I do not want to hear any more speeches of Mr.
Robinson's. I want him to get out of the case.

Mr. Robinson. I must express my unaffected regret that it should
be supposed by Mr. Scoville that I intended any disrespect to him.
I told him some time ago that I wanted assistance and he knew I
wanted an extension of time. I am very sorry not to have seen
Mr. Scoville for two or three days; it was only because I have
been employed in preparing for the defense. I did not intend him
the least disrespect. I will give the name of the counsel as soon
as I know he can be assigned.

The Coukt. It is important that this trial should proceed without
delay; that the prisoner shall have a fair trial and that the reproof
shall not rest upon the Court that he was sent to the gallows to
appease public indignation. I shall assign the counsel of whom
he has spoken to assist him, leaving that counsel to make his
arrangements to come into the case (if he cannot do so sooner)
in two weeks' time. I do not think that I should give any more
indulgence than this and I find embarrassment in giving that much.

Guiteau. I want to say emphatically that Mr. Robinson came into
the case without my consent. I know nothing about him and I do
not like the way he talks. I ask him peremptorily to retire. I
expect in some time to have money to employ any counsel that I
please. I am not a beggar nor a pauper.

Mr. Scoville. The only near relatives of the prisoner here, his
brother and sister, will endorse all I say. In our opinion the
prisoner is not a fit person to take charge of or to arrange or to
dictate his defense. At least the name of the person proposed
should be communicated to some of us.

CHARLES J. GUITEAU.

Mr. Scoville. I came here acquainted with but one member of
the bar whom I asked if he would accept an assignment. He said
he could not. I applied to General Butler whose reply was the
same. General Butler is the choice of the prisoner's relatives and
of the prisoner. We do not want the Court to assign counsel.

The Coubt. If it is the desire of the prisoner and his relatives
for the case to proceed I shall allow it to go on.

November 15-16.

The selecting of jurymen occupied two days. The following were
finally accepted and sworn: John P. Hamlin (50), b. Ireland, Res-
taurant Keeper; Fred W. Brandenburg (50), b. Prussia, Cigar-
maker; Henry J. Bright (52), b. Washington, Retired Merchant;
Charles J. Stewart (45), b. Washington, Flour Merchant; Thomas
J. Langley (54), b. Maryland, Grocer; Michael Sheehan (35), b.
Ireland, Grocer; Samuel F. Hobbs (63), b. Maryland, Plasterer;
George W. Gates (35), b. Washington, Machinist; Ralph Wormley
(40), Plasterer (colored); William H. Brawner (45), Commission
Merchant; Thomas Heineline (38), b. New York, Machinist; Joseph
Prather (54), b. Washington, Commission Merchant.1*)

Mr. Scoville. An address by the prisoner has got into the papers.
I wish to say that it is without my consent. Nothing will appear
with my approval except what takes place here.

Guiteau. Your Honor, I appear here in a dual capacity, as
prisoner and as my own counsel and I claim the final say. That
paper was addressed to the legal profession and I expect many
responses to it.u

io A large number of the jurors summoned were rejected because
they declared that their opinion was so strong on the guilt of the
prisoner that no evidence could change it. Several said they
thought he ought to be hung, one "nothing but the rope should be
used"; another, "he ought to be hung or burnt"; another, "no
amount of torture is too great for him;" and another, "the plea of
insanity is all bosh."

ii It was as follows: "To the Legal Profession of America: I am
on trial for my life. I formerly practised law in New York and
Chicago, and propose to take an active part in my defense, as I
know more about my inspiration and views than any one. My
brother-in-law, George Scoville, Esq., is my only counsel, and I
hereby appeal to the legal profession of America for aid. I expect
to have money shortly so I can pay them. I shall get it partly
from the settlement of an old matter in New York and partly from
the sale of my book and partly from public contribution to my
defense. My defense was published in the New York Herald on
October 6, and in my speech published November 15th (yesterday).
Any well-known lawyer of criminal capacity desiring to assist in
my defense will please telegraph without delay to George Scoville,
Washington, D. C. If for any reason an application be refused,
the name will Ire withheld from the public." Chables J. Guiteau.

]2 XIV. AMERICAN STATE TRIALS.

November 17.

Mr. Scoville. I wish to say that after conference between Mr.
Robinson we are now in perfect accord in regard to the steps to
to be taken in the defense.

Guiteau. I object to Mr. Robinson appearing in this case. 1
would not trust him with a ten-dollar-note case.

The Coubt. Take your seat, prisoner. I wish you to understand
distinctly that your labors as counsel in this case, as you claim
to be, shall be confined to consultation with the associate counsel
in this case. If you disobey, the Court will be under the necessity
of ordering your removal from the court room and proceeding with
the trial in your absence.

Guiteau. Your Honor has no right to cut me off, and I am going
to make a noise to the country about it. One or two blunderbuss
lawyers will compromise my entire defense, and I will not have it.
I come here in the honorable capacity of being the agent of the
Deity on this occasion, and I propose to appear as such. I do not
come on my hands and knees, and that is all there is about it.
That is the view I supposed your Honor to have taken.

THE DISTRICT ATTORNEY'S OPENING.

Mr. Corkhill. Gentlemen: There rests in any case a grave and
responsible obligation upon every man who is called upon in the
discharge of his duty under the law, to render a decision upon
which depends the life of a fellow creature. And while it is true
that the offence charged in the present case is no greater in legal
gravity and consequences to the prisoner, than if by his act he had
taken the life of the humblest and most obscure citizen of the Re-
public, still it is idle to overlook the fact that the eminent character
of the man whose life was taken, his high official position, and the
startling effects of the commission of the crime, render the case one
of unusual and unparalleled importance. It is the second time in
our history that the citizen chosen by the people of the United States
to discharge the high and responsible duties of President, has fallen
a victim to a lawless assassin during the period of his incumbency
of the office.

But in the former case we were just emerging from the shadows
of a long and bloody war. The country had been racked by com-
motions and stirred by civil feuds. Throughout the length and
breadth of the land, nearly every household mourned the loss of
relatives or friends, slain on the hotly contested battlefields of the
Republic. It was a danger that thoughtful men had anticipated.
It was a calamity that patriots had feared. And when it came,
with all its dread consequences, it was accepted as one of the results
of the then disordered and discordant conditions of public affairs.

But we had passed from the arena of the war; the sword had
been beaten into a ploughshare and the spear into a pruning hook;
the country was united — peace reigned at home and abroad. There

CHARLES J. GUITEAU. 13

were no local dissensions; there were no intestine strifes; seed-time
and harvest had come and gone; the battlefields, redeemed from the
scars and havoc of their bloody contests, were blossoming Avith the
fruits of peaceful labor. Suddenly the startling fact was proclaimed
throughout the land and around the entire world, that the President
of the United States had fallen a victim to the assassin's bullet in
the Capital of the nation.

Murder, under all circumstances and upon all occasions, is shock-
ing. The life of which we know so little and which we hold by so
fragile a tenure is dear to us all; and when it is brought to a close,
not in the usual order and course of nature, but prematurely by vio-
lence, no matter what may be the condition of the person, the hu-
man mind is appalled with terror. When a man, holding a position
of eminence and power, falls a causeless victim to the murderer's
stroke, we realize still more fully the awfulness of the deed which
produces the result.

This trial is a remarkable illustration of the genius and spirit of
our Government. Although our chief ruler was murdered; although
the effect of that death was felt in every station of life, in every
avenue of business, in every department of society, yet the prisoner,
his murderer, stands before you to-day entitled to the rights, to the
same privileges, panoplied by the same guarantees of the Constitu-
tion, as if he had killed the lowliest member of this community. I
doubt whether, in the world's history, there can be found another
instance like the present. In no age, under no government, has
there been seen such a situation as we have here before us. De-
fended by eminent counsel, demanding of right the full benefit of
every provision of law and the protection of every guarantee of the
Constitution, with the power, exercised carefully, to see that the
jury selected is unbiased and free from prejudice; every right is
extended to the prisoner that would be granted to a criminal charged
with the most insignificant offence.

It has been a subject of the deepest anxiety and gravest consider-
ation on the part of the admirers of our form of government,
whether the fundamental principles which underlie it did not con-
tain elements fatal to its permanency and success. With the indi-
vidual citizens are its absolute destinies for weal or woe. The
choice of your proper rulers, the enactment of laws and their
prompt execution, depend upon his character. No matter how im-
portant the trust or how grave the responsibility, upon the indi-
vidual citizen rests its final decision.

The simplicity of the forms under which our Government is ad-
ministered, constitute for us one of its greatest attractions, but the
easy accessibility to all of those charged with its administration
exposes them to many dangers from the viciously disposed. The
President of the United States, without pomp and parade, but after
the manner of the humblest citizen and with no other safeguard
than those common to all citizens leaves the scene of his official
labors for a brief recreation. In a public depot the prisoner at the
bar, without warning, fires at him with a pistol, inflicting wounds

14 XIV. AMERICAN STATE TRIALS.

which result in his death. And to-day, this, the greatest case ever
presented to a court of justice, is trusted entirely to you, who have
been selected from the body of the community, to weigh the evidence
and the law, and then to say upon your oaths whether the man
charged with the crime is guilty. While this trial will attract un-
usual attention throughout the entire world, yet its final deci-
sion rests with you. You are to determine, after you shall have
heard the evidence and been instructed in the law, whether or not
the prisoner at the bar is guilty of the murder of James A. Garfield.

The time and the scene of that occasion were generally dissemi-
nated by the press and are still fresh in the minds of every citizen
of the Republic, and they will remain with all their sad and gloomy
results until the present generation shall pass from among men.
After we are dead they will live in tradition, in history, song and
story till the latest hour of time. There is an enormity about the
immediate occurrences as they will be detailed to you by the wit-
nesses for the Government that makes them horrible to contemplate.

No words can faithfully depict the scenes of that fatal July morn-
ing. It was bright and beautiful and the morning sunlight gilded
the dome of the Capitol, the rays fell upon a city adorned with all
the loveliness of summer leaf and flowers. The President, wearied
with official cares, was specially joyous at his approaching vacation.
He started from the Executive Mansion, in company with the
Secretary of State, buoyant and glad. Early on the morning of
July 2d, last, the prisoner at the bar made preparation for the
murder. Breakfasting at the Riggs House, he took the fearful
weapon that he had previously obtained and going to the foot of
Seventeenth Street, away from residences and beyond observation,
he planted a stick in the soft mud on the river bank where the tide
had gone out and deliberately practised his aim and tested his
weapon. He intended there should be no failure in the accom-
plishment of the crime for which he had been preparing. Returning
he took with him a small bundle of papers and went to the Balti-
more and Potomac Railroad Depot at half past eight, an hour
before the arrival of the President.

After reaching the depot he went to the news stand and left cer-
tain papers with a letter addressed to Byron Andrews, a correspon-
dent of the Chicago Inter-Ocean, and a paper addressed to Mr.
Preston of the New York Herald, and then went into the closet,
carefully examined his weapon, placed it in his pocket, returned
and went outside to the pavement, had his boots blackened, and
then, in order to avoid the swift vengeance of an outraged commu-
nity, which he properly feared, engaged a carriage to take him, as
he said, to the Congressional Burying Ground, this point being near
the jail, and then entered the waiting room to watch for his victim.

All unconscious of the preparation for his murder, President Gar-
field, in company with Secretary Blaine, arrived at the depot and for
a few moments remained in the carriage in conversation. While
thus occupied the assassin stood gazing at them, waiting and watch-

CHARLES J. GUITEAU. 15

ing for a favorable opportunity for the perpetration of the deed.
The President and the Secretary of State alighted from the carriage.
With his usual courtesy President Garfield hesitated a moment on
the step to acknowledge the salutation of the policeman at the door,
and then entered the depot. He had gone but a few steps when the
assassin lurking in the rear, stepped up behind him, and pointing
his pistol with deliberate aim fired at his back, the first shot, no
doubt, doing its fatal work. The President shuddered, staggered
and attempted to turn, when another shot was fired and he fell
bleeding to the floor — unconscious.

The horror that seized upon everybody may be imagined but no
words can describe it. The ball from the assassin's pistol had
entered the middle of the back of the President about three inches
to the right of the back bone, inflicting a fearful wound which
resulted in his death after nearly three months of pain and suffer-
ing— and here the story of the crime might legally end, for the un-
lawful killing of any reasonable creature by a person of sound
memory and discretion, with malice aforethought, either expressed
or implied, is murder.

The motives and intentions of an individual who commits a crime
are of necessity known to him alone — no human power can pene-
trate the recesses of the heart — no eye but the eye of God can dis-
cern the motives for human action. Hence the law wisely says, that
a man's motives shall be judged from his acts, so that if one kill
another suddenly without any provocation, the law implies malice.
If a man uses a deadly weapon it is presumed he intended to com-
mit murder, and in general the law presumes a man to intend the
natural consquences of the act.

Were there nothing more against the accused than the occurrences
on the morning of July 2d, the evidence of his crime would be com-
plete and you would be authorized to conclude that he feloniously,
wilfully and with malice aforethought did kill and murder James
A. Garfield. But crime is never natural. The man who attempts
to violate the laws of God and society goes counter to the ordinary
course of human action. He is a world to himself. He is against
society, against organization, and of necessity his actions can never
be measured by the rules governing men in the every day transac-
tions of life. No criminal ever violated the laws who did not leave
the traces of his crime distinct and clear when once discovered. So
in this case we can only add to the enormity of this offence by
showing you its origin, its conception and the plans adopted for its
execution.

One year ago, the 11th of the present month, the prisoner
addressed to Hon. Wm. M. Evarts, the Secretary of State, the fol-
lowing letter:

New Yokk, November 11, 1880.

Hon. Wm. Evarts. Dear Sir: I wish to ask you a question. If
President Garfield appoints Mr. A. to a foreign mission, does that
supersede President Hayes' commission for the same appointment?

16 XIV. AMERICAN STATE TRIALS.

Do not all foreign ministers appointed by President Hayes retire on
March 4th next?

Please answer me at the Fifth Avenue Hotel at your earliest
convenience. I am solid for General Garfield and may get an
important appointment from him next spring.

Yours very truly, Charles Guiteau.

At this time, over a year ago, it will be seen he had in his mind
an application for and expectation of receiving an ofBce under the
approaching administration. In pursuance of that hope the prisoner
came to this city on the afternoon of the 5th of last March, no doubt
believing that he would receive at the hands of an administration
he supposed he had assisted in placing in power, such recognition as
according to his own opinion of his merits, he deserved. He was
outspoken and earnest in his demands, and in his various conversa-
tions seemed to feel confident of success. From his own letters it
is evident that during October and January he had written to Presi-
dent Garfield, calling attention to his services in the campaign and
soliciting an appointment. On the 8th of March he addressed a
letter to the President calling his attention to the fact of his desire
to be appointed to the Paris Consulate. On the 11th of May he
wrote Secretary Blaine the following letter:

March 11. 1881.
Senator Blaine: In October and January last I wrote General
Garfield touching the Austrian Mission, and I think he has filed my
application and is favorably inclined. Since then I have concluded
to apply for the Consul Generalship at Paris, instead of the Austrian
Mission, as I prefer Paris to Vienna. I spoke to the General about
it and he said your endorsement would help it, as it was in your
department. I think I have a just claim to your help on the strength
of this speech (enclosed), which was sent to our leading editors
and orators in August. It was about the first shot on the rebel
war-claim idea, and it was the idea that elected General Garfield.
Mr. Walker, the present Consul at Paris, was appointed through
Mr. Evarts, and I presume he has no expectation of being retained.
I will talk with you about this as soon as I can get a chance.
There is nothing against me, I claim to be a gentleman and a
Christian. Yours very respectfully,

Charles Guiteau.

He followed this communication by persistent personal appeals
and by writing notes and letters urging in various ways his claim
for this position. Not only did he besiege the Secretary of State and
the officers of the State Department, but the President and the offi-
cers of the Executive Mansion. Generally treated with courtesy
and kindly dismissed, as his wants and necessities became more
urgent, he became more persistent and determined. On the 8th of
March he commenced writing to the President, stating his reasons
why the position should be given him, and urging in various ways

CHARLES J. GUITEAU. 17

his claims for the place. Finally, his importuning became such a
nuisance that Secretary Blaine ordered him to keep away from the
State Department, and he was forbidden admittance to the White
House.

Soured and indignant at this treatment, disappointed and en-
raged, on the 23d of May he wrote President Garfield a letter in
which — in the light of the fearful tragedy that followed — it needs no
discerning eye to detect the threat of murder. This is the first
premonition of the conception of this crime. That letter was the
first indication that disappointment had turned his heart to malice,
and that he had determined in revenge to commit the crime with
which he stands charged. He was still smarting under the indignity
cast upon him by the Secretary of State: he was still suffering from
the rebuffs he had received at the hands of the employees of the
Executive Mansion. Of inordinate vanity and of unparalleled self-
esteem, he had keenly felt the personal outrages he supposed had
been committed upon him, and he determined to avenge them. That
letter is a remarkable one; remarkable as indicating the motive that
prompted this terrible crime; remarkable as giving an insight into
the reasons that impelled this man to nerve himself up to a condi-
tion to commit this deed. It was as follows:

General Garfield: I have been trying to be your friend. I do not
know whether you appreciate it or not; but I am moved to call
your attention to the remarkable letter from Mr. Blaine which I
have just received. According to Mr. Farwell, of Chicago, Blaine
is a vindictive politician and an evil genius, and you will have
no peace till you get rid of him. This letter shows Mr. Blaine is
a wicked man and you ought to demand his immediate resignation,
otherwise you and the Republican party will come to grief. I will
see you in the morning if I can, and talk with you.

Very respectfully,

May 23. Charles Guiteau.

You see in these sentences his bitterness of spirit, inspired by the
treatment he claims to have received at the hands of the Secretary
of State, and the demand for his removal and the threat, if it was
not done, what would result. Yet we will find on the 21st of March
he wrote to Secretary Blaine:

"I am very glad personally that the President selected you for
his premier. * * * * You are the man above all others for the
place."

That is one chapter in the history of this crime. The letter
standing above and independent of every other circumstance, would
not of itself attract attention to its peculiar and significant expres-
sions. But it will be shown, that among the papers left by this man
for publication, is found one dated the 16th day of June, 1881, in
which he uses this significant language: "I conceived the idea of
removing the President four weeks ago." So that at the time he
wrote that letter, he in effect said, I want my office, Mr. Blaine

18 XIV. AMERICAN STATE TRIALS.

stands in my way, I demand his removal, if it is not done, ruin for
you and the party will be the result.

Chiiteau. Political ruin, if you please, not personal ruin.

Mr. Porter. The administration of justice, and especially of
criminal justice, should never be distracted by the clamor, the dis-
order or the contumacy of the prisoner. I must insist on the
execution of the order of the Court.

Judge Cox. It is within the power of the Court to order the
removal of the prisoner and to have the trial conducted in his
absence.

Ouiteau. I will not do it again, your Honor.

Mr. Corkhill. It will be for you to consider whether this was
not as near a threat of his determination to do this crime, as he
dared then to make with his knowledge of the law and the danger
of exposure. When he conceived the idea he had been rebuffed and,
as he thought, insulted by the Secretary of State. He had been
driven from the White House. He was disappointed in his grand
expectations. He was without money and also an almost destitute
wanderer upon the streets, and he determined to do the cruel deed.
But here is the first conception; the original inspiration. Here the
ground-work of his settled determination. Once the idea conceived
that he was a wronged and outraged man, it took but little time
for him to decide to represent his actions as being the result of
his desire to vindicate some great principle. He knew, and well
knew, that he must hang some screen in front of the real motive
for his crime. His heart was wicked enough to conceive from its
own malignity the crime itself, but his shrewdness and vanity
demanded that the public should not gaze upon the real motives.
This will account for all of the extraordinary circumstances con-
nected with the crime. This will explain many of his lofty and
egotistical utterances. It is true there was a period during this time
when there existed dissensions in the party in power. It is a well-
known fact, that as between the Executive and certain prominent
and eminent men there was a difference of opinion as to the course
to be pursued and the policy to be inaugurated by the administra-
tion then just at its commencement. It is true that there were grave
differences of opinion and earnest expressions of sentiment on ques-
tions of great gravity and importance to the peace and welfare of the
country, and as attendant upon these, there were frequent utterances
of bitterness by partisans on either side. To this man's wicked and
revengeful mind it immediately occurred: "Here is the opportunity
to commit . the crime; to avenge myself and shelter my actions
under the claim that it was the outgrowth of the present strife;" and
he systematically and cunningly prepared an apology and defense of
his crime in accordance with this. You will learn by the testimony
that will be presented to you, that from the time of his arrival in this
city and until he had lost the expectation of favors to be received,
and made up his mind to kill the President, a period of nearly three
months, he was an earnest, so-called Garfield man. He announced
to the President, as will be shown by his own letter, his devotion and

CHARLES J. GUITEAU.

fealty to him; he desired constantly to impress upon the President
that he was for him as against every one else. You will find him on
May 7th announcing to the President, that in the contest going on,
he stood by him; but when he had lost all hope of the appointment
he desired under the administration of President Garfield, and all
expectation of official recognition from this source, he resolved to
seize upon the pretext afforded by the situation, to gratify his re-
venge and kill the President, and shield his real motives from the
public. After this had been fully settled in his mind, with his
experience of human affairs; with his observations of society (for
he is a man of no ordinary ability in these directions), he carefully
determined to make the situation of advantage to him, and when he
had fully conceived the idea, when it had fastened itself on his
mind, he went to work to accomplish his purpose with a spirit of
vindictiveness, with a cruel determination that has scarcely a
parallel in the annals of crime. How many efforts to do the deed,
or when and where he decided upon the exact method of its com-
mission, no human mind can tell.

On the 8th day of June he borrowed from an acquaintance in
this city fifteen dollars, representing that he was out of money and
desired the amount to pay his board bill. After procuring this loan
he at once visited the store of Mr. O'Meara, on the corner of Fif-
teenth and F Streets, for the purpose of purchasing a weapon. In
this, as in all other acts connected with the commission of this
crime, he displayed the malignity of his determination and the
wickedness of his motives. He asked for a pistol of the largest
calibre, and one that would do the most effective work, and was
shown and purchased the pistol which he finally used; a weapon
terrible to behold, carrying a ball of the largest size; a weapon that
was self-cocking, in order that there might be no delay in its use
when an emergency occurred.

How for twenty-four days he carried that deadly weapon, and
how often he dogged the footsteps of the unsuspecting President;
how he watched his carriage; how he made his arrangements at the
church; how he followed him from the residence of Mr. Blaine,
watching and waiting for the fatal hour, he alone can tell; but on
the morning of the 18th of June he ascertained from a publication
in the newspapers that the President would go to Long Branch, and
he determined to kill him at the depot. How he went there fully
prepared for that purpose, and was deterred from its accomplish-
ment his own words best tell. Returning to his room he wrote:

Washington, Saturday Evening, June 18.

"I intended to remove the President this morning at the depot, as
he took the cars for Long Branch. Mrs. Garfield looked so thin, and
clung so tenderly to the President's arm, my heart failed me to part
them, and I decided to take him alone; it will be no worse for Mrs.
Garfield to part with her husband this way, than by natural death;
he is liable to go at any time anyway. C. G."

20 XIV. AMERICAN STATE TRIALS.

After this commenced the period of watching and waiting. It
might be a story of thrilling interest to know how often the fatal
danger threatened the lamented dead, and how often while buoyant
with life the shadow of death haunted him. But again we are in
the field of conjecture, until we come to the morning of the murder,
the occurrence of which I have already described. And this com-
pletes the story of the crime. This ends the recital of the circum-
stances attendant upon this National bereavement; for it cannot be
forgotten that the effects of that fatal shot were felt throughout the
land; that not only one family mourned, but around every hearth-
stone and about every fireside there hung a shadow, and it is not
surprising that many for a time forgot law, and doubted Providence,
for it seemed so terrible that this man, in the full tide of his career
of eminence and usefulness, should fall murdered without warning
or notice.

No verdict of yours can recall him. He "sleeps the sleep that
knows no waking," on the peaceful banks of the beautiful Lake
Erie, whose limpid waters wash the boundaries of his native State,
overlooking the city he loved so well, and beneath the sod of that
State whose people had crowned his life with the highest honors.
It is too late to call that husband back to the bereaved wife and
fatherless children. For that waiting little mother whose face will
never fade from the Nation's memory, there can be no relief in this
world. The fatal deed is done and its horrors and griefs must
remain.

You have each been asked whether you were governed by
religious convictions, and upon your oaths you have answered affirm-
atively. Eighteen hundred years ago it was written by the pen of
inspiration as the law of that merciful God whom you revere: "Woe
unto the world because of offences, for it must needs be that offences
come; but woe to that man by whom the offence cometh. It were
better for him that a mill-stone were hanged about bis neck and
that he were drowned in the depth of the sea." And the honest,
patriotic, law-abiding people of this country are waiting for your
verdict, to see whether the man by whom this great offence came
shall not suffer the just and merited punishment of the law.

THE WITNESSESS FOR THE PROSECUTION.

James G. Blaine.^ Am Secre- own containing bis children,

tary of State. On July 2nd a We alighted at the railroad sta-

little after nine a. m., the Presi- tion and went together through

dent and I left the White House the waiting room. I suddenly

in my carriage, followed by his heard two reports of a pistol

12 Blaine, James Gillespie (1830-1893). Born, West Brownsville,
Pa. Member House of Representatives 1862-1876; Speaker 1869-
1875; United States Senator (Maine) 1876-1881; Secretary of State
1881; 1889-1892; Republican candidate for President, 1884. Author
of "Twenty Years of Congress." Died in Washington.

CHARLES J. GVITEAV.

21

and the President threw up his
hands and said: "My God,
what is this?"

Then there rushed past me a
man. I followed him instinct-
ively. Then the shout came up,
"We have got him." I was the
first or second person who got
back to the President; he was
vomiting and unconscious. Im-
mediately a very large crowd
surrounded him, mattresses
were brought from a sleeping-
car and he was removed to an
upper room in the depot. Med-
ical aid was soon at hand and
he was carried to the White
House. I wrote a despatch to
the public, especially to the Eu-
ropean public, directing it to the
Minister at London. The man I
ran after was Guiteau. The
shot being behind my back I did
not see him with the pistol in
his hand. I have seen the pris-
oner very often. He visited the

State Department twenty times.
I conversed with him several
times. I never gave him the
slightest encouragement that he
would receive an appointment.
I told him there was no prospect
whatever and that I did not
want him to continue his visits.
He was a very persistent appli-
cant for the Consul-Generalship
at Paris. Had written quite a
number of letters. These are
letters which were received from
Guiteau and believed to be in
his handwriting. This is a let
ter that came over from the
White House. That letter Mr.
Evarts found on the floor of the
State Department. I came with
the funeral train. I saw the
body after death at Elberon, N.
J., where he died on 19th Sept.
in the cottage belonging to C. F.
Francklyn, of New York, who
had very kindly tendered its use
for the President.

The District-Attorney read the letters identified by Secretary
Blaine, viz., the applications of the prisoner to the President and
Secretary of State for an appointment in the diplomatic servicers

is (a) Dated Riggs' House, Washington, March 17, 1881, to Gen.
Garfield, saying that he had written him in October about the
Austrian Mission and now that Mr. Kasson had resigned he thought
he ought to have it and not be satisfied with the Consulship at Paris.

(b) See Mr. Corkhill's speech, ante, p. 12.

(c) Dated March 21, 1881, to Mr. Blaine, saying: "I think the
President feels well disposed towards me about the Austrian Mission
and with your help I can get it. Am glad he selected you for his
Premier. You are the man above all others for the place."

(d) Dated March 24, 1881, formal application to the President
and the Secretary for the Austrian Mission. He says: "I think I
have a right to it on account of my services in the election. I ask
this as a personal tribute."

(e) Dated April 2, to Mr. Blaine asking for the Paris consulship,
saying that "the President and Gen. Logan are willing to leave it
to you," that he will get back from Paris in time for the Repub-
lican convention of 1884 "and do you marked services."

(f) Dated March 28, to Mr. Blaine, says he understands from

22

XIV. AMERICAN STATE TRIALS.

A letter to Mr. Evarts.i* The speech which prisoner claimed to
have delivered during the Presidential campaign entitled, "Garfield
against Hancock."i5

Mr. Blaine. CrosSrexamined.
I cannot say exactly that I was
acquainted with him in the
sense of acquaintance. He vis-
ited the State Department fre-
quently; can hardly claim per-
sons visiting there are acquaint-
ances. I identified tne man from
time to time as I see him before
now. I know there were sev-
eral puerile letters from Guiteau
about speaking in the campaign
in Maine. Do not think they
can be produced. The debris of
a campaign is generally swept
away into the waste basket or
fire. The general rule is never
to take a speaker who applies to
speak. Because a man of repu-
tation enough to be of influence
is of consequence enough to be
sought. The thing had passed
out of my mind until my private
secretary said that this man
had persistently applied to speak
in the Maine campaign. I had
always treated Guiteau with
civility. The Paris Consulate
was an office of consequence and
I did not consider Guiteau as
belonging to the class of men

that would be assigned. Though
offices are often distributed as a
reward of party services and
such services are considered in
that connection, men who hold
conspicuous positions in diplo-
matic stations are not those who
have applications on file for
them in the Department.

Mr. Scoville. What was the
condition of the Republican
party as to uninimity and har-
mony for six weeks before the
shooting of the President?
There were differences between
the President and some mem-
bers of the party about matters
in New York.

The witness. The President
had appointed Mr. Robertson as
Collector of Customs at New
York and on that there grew up
a feeling between him and his
administration and Senator
Conkling.ie The two New York
Senators, Conkling and Piatt,
resigned.

Q. Did that struggle gener-
ate or keep up the feeling that
caused the resignations?

Col. Hooker of the National Committee that he has to have a
consulship and hopes it is at Paris as this is the only one he cares
for; that Gen. Logan said "I have no objection to your having the
Paris Consulship."

14 See Mr. Corkhill's speech, ante, p. 12.

is A wild plea to elect Gen. Garfield or there will be another war
between the North and South, ending, "If you want the Republic
bankrupted with the prospect of another war, make Hancock presi-
dent. If you want prosperity, make Garfield president."

16 Conkling, Roscoe (1829-1888). Born, Albany, N. Y. Member
of Congress (N. Y.) 1859-1863. United States Senator 1867-1881.
Died in New York City.

CHARLES J. GUITEAU. 23

Mr: Davidge. I must object. The examination is taking too wide
a range.

Mr. Scoville. We consider it important to show that there was a
quarrel in the Republican party and that instead of being healed it
was growing wider, if possible, so that even the death of the
President did not interrupt the daily bickerings and strife that
existed in which leading men of the country were taking part. We
wish to show the extent of the feeling that prevailed in the com-
munity in order to show in proper relation the influence that was
brought to bear on the mind of the prisoner.

Mr. Davidge. To save time we withdraw any objection.

Mr. Blaine. The termination stood by Grant; it originated be-
of it was in the election of the fore that. I invented the term
second senator — Lapham. Those myself in a despatch to the Bos-
factions in the party were com- ton Herald in 1875. They, after
monly designated as "Stalwarts" Garfield was nominated, became
and "Half-breeds." his supporters. They were Re-
Mr. Scoville. Did not this publicans and all Republicans
term "Stalwart" date back to the supported Garfield. "Half-
political campaign last year, in- breeds" included all the Repub-
cluding Grant, Logan and Conk- licans in New York that were
ling? A. While the term is not included among the "Stal-
older than that, it became prom- warts". The person appointed
inent in connection with the as collector was classed with the
Chicago Convention as applica- "Half-breeds". Senator Conk-
ble to the 306 delegates that ling was a "Stalwart."

Ouiteau. In spite of counsel, I have rights here which should be
recognized. I want to state my position.

Judge Cox. You cannot be heard now. The Court is satisfied
with your counsel.

Guiteau. But I am not. I think it an outrage to have incom-
petent counsel forced upon me. Mr. Scoville is doing splendidly.
I most distinctly appreciate his services. I want a chance to defend
myself and there will be a row all the way through if I don't
have it.

Judge Cox. If you do not keep silence I will have you removed
in irons.

Guiteau. I do not care if you do. The American people have
something to say about this matter.

Mr. Corkhill. The next witness is the Minister from Venezuela,
who by International law is exempt from the process of the Court.
But his government in this case waives the diplomatic privilege and
instructs him to give his testimony.

Simon Camacho. Am minister saw Secretary Blaine enter with

from Venezuela here; was at the a gentleman whom I did not rec-

depot the morning of the mur- ognize, as his back was towards

der. Was at the depot to take me. Heard a pistol and then

the train to New York when I saw a man firing at another;

24

XIV. AMERICAN STATE TRIALS.

recognize the prisoner as the
man.

Cross-examined. He wore a
slouch hat pulled down over his
eyes; people cried "murder" and
"lynch him;" he was pale and
fear was in his eyes.

Mrs. Sarah B. White. Am Ma-
tron of the Ladies' Waiting
Room at the B. and P. Depot;
saw prisoner walking up and
down the Gentlemen's Room pre-
vious to the arrival of the Pres-
idential party on July 2. Did
not observe the pistol in his
hand when I went to the Presi-
dent's assistance. Guiteau was
only about three feet back of the
President when he fired at him.

Cross-examined. Saw nothing
remarkable in the prisoner ex-
cept that he kept his eyes con-
stantly on the Ladies' Room, as
if awaiting the arrival of some
one.

Robert A. Parke. Am a Secret
Agent in the Depot. Was look-
ing through the window of my
office into the Ladies' Room,
when the shooting took place.
Was not in a position to see the
prisoner when he fired the first
shot, but saw him move two
.steps into the Ladies' Room and
fire the second shot. I was the
first to seize him and put him
in charge of two police officers.

Cross-examined. He started to
the Ladies' Room, then turned
and was facing me when ar-
rested; he wore a slouched hat
pulled pretty well over his head;
said he had a letter for General
Somebody, and that he wanted
to go to jail; I caught him by
the back of the neck with my
right hand and by the left wrist
with my left. He didn't make
much resistance.

Judson W. Wheeler. Was in
the Ladies' Waiting-room at the
time of the occurrence. When
the first shot was fired the pis-
tol was not more than a few
inches from his face and the
smoke from the discharge made
him cough.

George W. Adams. Am pub-
lisher of the Washington Even-
ing Star. Was in the depot
when the President and Secre-
tary Blaine alighted from their
carriage and stepped into the
Ladies' Waiting-room. The
President stopped to speak to a
policeman at the door, and Mr.
Blaine stepped in ahead of him.
Did not see the first shot fired
but in a few seconds another
shot was fired. The President
raised his arms and sank grad-
ually to the floor. The man
started toward the waiting-room,
then turned and was seized by
the officers. The whole thing
had not occupied ten seconds.
He did not seem to be very ex-
cited. Understood him to say it
was all right, and at first
thought prisoner was a country-
man trying to quiet the people.

Jacob P. Smith. Am a janitor
of the B. & P. Depot. Think it
was the second shot which took
effect. I was the first who laid
his hand upon the President
after he fell. He just settled
down; his legs gave way; he was
very pale and did not say a
word; his eyes were open. Did
not know whether he was then
unconscious. I tried to get him
into a sitting position, but could
not, so lowered his head, ran to
the door and gave the alarm.
Nobody was with the President
when I left him. Had not seen
the prisoner there before the
President's arrival.

CHARLES J. GUITEAU. 25

November 18.

Mr. Scoville asked the Court to take measures to prevent the
prisoner from giving unauthorized communications to the public
press and his annoying interruptions in the court room.

Ouiteau. Mr. Scoville talks one thing to me in private and an-
other thing in public. Last night he spent an hour with me in jail
and showed a different spirit from now. I do not propose to put
my case in his hands. He is no lawyer and no politician. I want
first-class talent on this business and I am going to have it or there
is going to be trouble.

Mr. Scoville. I do not propose to be interrupted here by the
prisoner every day.

Ouiteau. You are no criminal lawyer. I propose to get two or
three of the first-class lawyers in America to manage my case.

The Court. Silence, prisoner, or you will be removed.

Ouiteau. If you expel me from the court room the Court in banc
will reverse you. If the Court puts me out (to the officers) — con-
founded fools you, mind your business; you ain't got no sense.

The Coukt. On several occasions the prisoner has been, on occa-
sions of disorderly conduct, removed from the court. I will not
resort to that unless it is necessary; but I admonish the prisoner
in advance that if the case requires it, it will be done. You shall
be heard at the close of the evidence if you desire it. Until that
time you must preserve silence.

Ouiteau. I came here as counsel and want to be heard.

The Court. You cannot be heard.

Ouiteau. If I am convicted the Court in banc will reverse you
and give me a new trial. I want two or three of the best lawyers
in America and I expect to get them.

Joseph E. Sharp. Am assist- President had been taken up-

ant train-master of the B. & stairs.

P. Railroad. Was waiting to Ella M. Ridgley. The morn-
start the limited express; heard ing of July 2d was standing at
two shots fired, hurried into the the door at the depot; I saw the
main waiting-room and found prisoner. A hackman asked
Guiteau in the hands of Mr. him where he wanted him to
Parke with two police officers drive to ; he said to the cemetery
closing in on him. Parke was and told him to wait there until
shouting: "This is the man," he came out. This was about
as if he wanted assistance in four minutes before the Presi-
the Ladies' room. Mr. Garfield dent and Secretary Blaine en-
was lying on his back supported tered. Then saw him in the La-
by Mrs. White, and he gave me dies' waiting room, draw out a
a serious, dying look with his weapon; I did not realize at the
eyes fixed. Sent two boys to get moment it was a pistol. After
police officers to keep out the firing, prisoner took two or three
crowd. When I returned the steps nearer to the President

26

XIV. AMERICAN STATE TRIALS.

and fired a second shot when
about four feet away from him.
On the first shot the President
threw up his hands and half fell
back. He kept sinking all the
time as the second shot was
fired; was not sure whether the
second shot touched him. The
prisoner then went to the door
and I lost sight of him until the
officers passed through the room
with him.

Cross-examined. When he was
talking to the fcackman he
looked distressed and troubled;
had the idea that he was going
to the cemetery to visit dead
friends. In the hands of the of-
ficers he held a paper in his
hand; heard him say he wanted
it given to General Sherman. He
seemed more calm than before
he fired the pistol — not so dis-
tressed, rather pale. After the
second shot he walked to the
door, not very rapidly.

Joshua A. Davis. Gateman at
the depot, and

William 8. Crawford, a driver.
Had only a slight view of the
prisoner in the crowd, but saw
him struggle to get away.

John A. Scott. Am special of-
ficer at the depot. Was the first
officer to reach prisoner after
Parke seized him. Said that he
wanted to go to jail and that he
had a letter he wanted sent to
General Sherman. We took him
to the police station. On the way
he said: "I am a stalwart and
Arthur is now President of the
United States." Kept repeating
about the letter he would send
to General Sherman, and said:
"I am a gentleman and a law-
yer"; was searched and a packet
of papers, some change and a re-
volver taken out of his pocket.

Cross-examined. Be had a fine,

bright looK in nis eyes, but was
cool and calm.

Edmund L. DuBorry. Am a
civil engineer; saw prisoner in
the crowd at the station.

Cross-examined. Thought he
had a bad countenance but am
unable to state what peculiar
features of prisoner had given
me that impression. My knowl-
edge of human nature led me to
the conclusion that prisoner was
a bad character. Have several
times expressed an opinion that
the man should be hanged.

Patrick Kelly. Am a police of-
ficer at the depot. At 8:45 saw
prisoner standing with two
hackmen; saw the President's
carriage stop; the President had
his hand on Mr. Blaine's shoul-
der. The President said to me:
"How much time have I, Gen-
eral?" Took out my watch and
showed him he had ten minutes.
Mr. Blaine got out and then the
President and I saluted him. He
went to the third step and then
turned round smiling, lifted his
hat to me and went into the de-
pot out of my sight. Soon I
heard the report of a pistol,
turned quickly and went to the
door; then I heard another re-
port and a scream; first thing I
saw was the prisoner coming
against me. I grabbed him. He
said: "I want to send this let-
ter to General Sherman imme-
diately." "Hold up," said I,
"there were two shots fired and
you are coming from the direc-
tion from which they were fired.
I will hold you to know the re-
sult." The first man I saw was
DuBorry right by my side. Pris-
oner jerked and pulled me down.
I pulled out my club to hit
him, but not knowing what the
man had done, I did not hit

CHARLES J. GUITEAU.

27

him but gave him a good shak-
ing and brought him along.
Saw Lowry snatch the paper
that prisoner held in his hand;
then Parke grabbed at Guiteau
and threw off his hat. Then
Scott got hold of his wrist and
twisted it. Guiteau asked him
not to break his wrist. Parke
said: "That is the man who
shot the President." Did not
know until then that the Presi-
dent or any man had been shot.
Prisoner on the street said: "I
did it; I will go to jail for it.
Arthur is President and I am a
Stalwart." We took him to po-
lice headquarters. When I went
in I sang out: "This man
killed (or shot) the President."
Detective Acton said: "You
are giving us taffy." Took the
pistol out of his pocket and two
pieces of silver. He resisted
when I took letters from him.
Said he wanted them to go to
Byron Andrews. Lieut. Eckhoff
asked him if he had anything to
say. "I have nothing to say,"
said he. "The papers speak for
themselves." Asked him what
his name was. He said :
"Charles Guiteau of Illinois, a
theologian and a lawyer. Don't
get excited, take your time, you
have plenty of time to search
me."

Cross-examined. On the way
prisoner spoke to me about his
fear of being hurt and I says to
him: "Now the quicker you and
me get to Headquarters the bet-
ter for both of us."

Guiteau. Allow me to exam-
ine the witness. He came nearer
the truth than any one else who
has been on the stand. I did not
attempt to run at all.

The Court. You can only ex-
amine him through Mr. Scoville.

Thompson H. Alexander. Saw
the shooting. My impression
was the President was falling
when the second shot was fired
about three seconds after the
first. Prisoner looked desperate-
ly in earnest.

Guiteau. I understand, Your
Honor, that Judge Magruder of
Maryland is willing to assist in
the defense. I hereby publicly
invite him to meet me here on
Monday at the trial. I have
two or three other names I shall
mention. Mr. Scoville is doing
splendidly but I want him to
have help.

John Taylor and Aquilla Bar-
ton, colored hackmen, swore
that the prisoner had bargained
about a week before the shooting
to convey him to Benning's Sta-
tion, just beyond the Congres-
sional Cemetery, and that he
was to be driven very rapidly.
He was fresher than he is now.

Guiteau. I may state here
that I had the first square meal
today I have had since the 2d
of July.

Byron Andrews, correspond-
ent of the Chicago Inter-Ocean
and New York Graphic. Had
not received any papers from
prisoner; had no acquaintance
with him.

Sevillon A. Brown. Am Chief
Clerk of the State Department.
Prisoner made frequent visits to
the department. I gave orders
not to send any more cards of
his to the Secretary nor to let
him see the Secretary.

Cross-examined. Was quite
sure the place for which Guiteau
applied was quite beyond his
reach. He did not look to be
the kind of a man who would be
appointed to such a position.
Excluded his card from the Sec-

28

XIV. AMERICAN STATE TRIALS.

retary because it was hardly
worth while to take up the Sec-
retary's time. The Secretary
had not ordered the exclusion
of Guiteau's cards, nor did Gui-
teau know they were excluded.
Had also refused to permit the
prisoner to make use of the li-
brary of the Department. Did
not want to give him any ex-
cuse for being there. Wanted to
rid the Department of him. Did
not notice anything peculiar
about him except that he was a
nervous individual, and that he
seemed to have a reluctance to
look one in the eye.

Guiteau. I will look in your
eye, Mr. Brown.

Adolphus Eckhoff. Am a po-

lice lieutenant. The man
seemed frightened on the way to
jail, but there was nothing par-
ticularly wild about his looks.
Heard the man say he was a
Stalwart of the Stalwarts, and
that he had shot the President
to save the Republican party
and the country.

J. Stanley Brown. Was pri-
vate secretary to the late Presi-
dent. Guiteau called very fre-
quently at the White House. I
finally, about the 15th May, told
the usher that he must no long-
er trouble the office. Had told
Guiteau twice that his applica-
tion, being in the consular ser-
vice, must go to the State De-
partment. Identify those letters
from Guiteau to the President.

The District Attorney read :

March 8, 1881.

General Garfield: I called to see you this A. M., but you were
engaged. In October and January last, I sent you a note from
New York touching the Austrian Mission. Mr. Kasson, of Iowa,
I understand, wishes to remain at Vienna till fall. He is a good
fellow. I should not wish to disturb him in any event. What do
you think of me for Consul-Gen eral at Paris? I think I prefer
Paris to Vienna, and, if agreeable to you, should be satisfied with
the Consulship at Paris. The enclosed speech was sent to our
leading editors and orators in August. Soon thereafter they opened
on the rebel war-claim idea, and it was this idea that resulted in
your election. Mr. Walker, of New York, the present Consul at
Paris, was appointed through Mr. Evarts, and I presume he has no
expectation of being retained. Senators Blaine, Logan and Conkling
are friendly to me, and I presume my appointment will be promptly
confirmed. There is nothing against me. I claim to be a gentleman
and a Christian. C. G.

General Garfield: I understand from Colonel Hooker, of the
National Committee, that I am to have a Consulship. I hope it is
the Consulship at Paris, as that is the only one I care to take.
Now that Mr. Phelps has the Austrian Mission, I think I have a
right to press my claim for the Consulship at Paris. I think
General Logan and Secretary Blaine are favorable to this, and wish
you would send in my name for the Consulship at Paris. Mr.
Walker, the present Consul, I do not think has any claim on you
for the office, as the men that did the business last fall are the

CHARLES J. GUITEAU. 29

ones to be remembered. Senator Logan has my paper, and be said
be would see you about tbis.

Marcb 26. Very respectfully, Charles Guiteau.

General Garfield: From your looks yesterday, I judge you did
not quite understand what I meant by saying: "I have not called-
for two or three weeks," intended to express my sympathy for you
on account of the pressure that has been on you since you came
into office. I think Mr. Blaine intends giving me the Paris Consul-
ship, with your and General Logan's approbation, and I am waiting
for the break in the Senate. I have practiced law in New York and
Chicago, and presume I am well qualified for it. I have been here
since March 5th, and expect to remain some little time, or until
I get my commission.

April 8. Very respectfully, Charles Gthteau.

General Garfield: I wish to say this about Mr. Robertson's nomi-
nation. Would it not be well to withdraw it, on the ground that
Mr. Conkling had worked himself to a white heat in opposition. It
might be done quietly and gracefully, on the ground tbat since the
nomination many merchants and others in New York had petitioned
for the retention of General Merritt. It strikes me that it would
be true policy to do this, as Mr. Conkling is so determined to defeat
Mr. Robertson, and the chances are that he may do it. It is doing
great harm all around. I am very sorry you have got Conkling
down on you. Had it not been for General Grant and Senator
Conkling we should have lost New York. The loss of New York
would have elected Hancock. Mr. Conkling feels you ought to have
consulted him about the appointments in his own State, and that
is one reason he is so set against Mr. Robertson, and many persons
think he is right. It seems to me that the only way out of this
difficulty is to withdraw Mr. R., on the ground that since his
nomination the leading merchants of New York have expressed
themselves as satisfied with General Merritt, who certainly is not
a "Conkling man." I am on friendly terms with Senator Conkling
and the rest of our Senators, but I write tbis on my own account
and in the spirit of a peacemaker. I have taken the liberty of
making this suggestion to Mr. Blaine, and wish you and he would
give it due attention.

April 29. Very respectfully, Charles Guiteau.

General Garfield. I am sorry you and Senator Conkling are
apart, but I stand by you on the ground that his friends, Morton,
James, Pearson, and the rest of them have been well provided for,
and Mr. Conkling ought to have been satisfied.

May 7. Very respestfully. Charles Guiteau.

To General Garfield: I have got a new idea about '84. If you
work your position for all it's worth, you can be nominated and
elected in '84. Your opponents will probably be General Grant and

30 XIV. AMERICAN STATE TRIALS.

Mr. Blaine. General Grant will never be as strong again as he
was just after his trip around the world. Too many people are
dead set against a third time, and I don't think he can be nomi-
nated, much less elected again. Two National Conventions have
slaughtered Mr. Blaine on account of his railroad record and con-
nections. The Republican party are afraid to run him. This leaves
the way open for you. Run the Presidency on your own account;
strike out right and left. The American people like pluck, and in
1884 we may put you in again. C. G.

White House, May 10/ — P. S. — I will see you about the Paris
Consulship tomorrow, unless you happen to send in my name today.

General Garfield: Until Saturday, I supposed Mr. Blaine was my
friend in the matter of the Paris Consulship; but from his tone on
Saturday I judge he is trying to run the State Department in the
interest of the Blaine element in '84. You are under small obliga-
tions to Mr. Blaine. He almost defeated your election by the loss
of Maine. Had it not been for Hancock's blunder on the Tariff,
and the decided efforts of the Stalwarts, you certainly would have
been defeated after the loss of Maine. You recalled Mr. Noyes for
Mr. Morton, and I wish you would recall Mr. Walker for me. I am
with Mr. Morton and General Arthur, and I will get them to go
on my bond. General Logan and Senator Harrison and the rest
of my friends will see that it is promptly confirmed. "Never speak
to me again," said Mr. Blaine Saturday, "on the Paris Consulship
as long as you live."

Heretofore he has been my friend, but now his eye is on a "Blaine
man" for the position, that will help him in '84. Two National
Conventions have slaughtered Mr. Blaine, and he ought to see that
there is no chance for him in 1884. I want to get in my work for
you in 1884. I am sorry Mrs. Garfield is sick, and hope she will
recover soon. Charles Guiteau.

May 16.

General Garfield: I hope Mrs. Garfield is better. Monday I sent
you a note about the Paris Consulship; Tuesday, one about *84.
The idea about '84 flashed through me like an inspiration, and I
believe it will come true. Your nomination was a providence, and
your election a still greater providence. Had Hancock kept his
mouth shut on the Tariff, he would have been elected probably,
notwithstanding Grant and Conkling and the treachery of Kelly.
Business men were afraid to trust a man in the White House who
did not know anything about the Tariff, and this killed Hancock.
You are fairly elected, and now make the best of it. With two
terms in the White House, and a trip around the globe, you can go
into history by the side of General Grant. May I tell Mr. Blaine
to prepare the order for my appointment to the Paris Consulship,
vice George Walker recalled. Charles Guiteau.

White House, May 13.

CHARLES J. GUITEAU. 31

Also the letter of May 23rd read by the District Attorney
in his opening address.

Cross-examined. Remember two letters written by Guiteau to
General Garfield at Mentor. One in October, 1880, and the other
in January, 1881; they are probably now among the papers of the
estate.

Mr. Scoville. The October letter was dated from New York and
was substantially like this: "General Garfield: I am an applicant
for the Austrian Mission. I expect to marry a lady of this city
of great wealth in a few days."

The Prisoner. Not correct. Better let me reproduce it from
memory. I can do it if you want me to. The January letter was
a repetition of that. There is no use in putting this gentleman, the
witness, to the trouble of hunting up those letters.

James L. Denny. Am in charge of the news stand at the depot;
identify the package left with me by prisoner on the morning of
the shooting, for Byron Andrews and his co-journalists.

The District Attorney read them to the jury.

(1) July 2, 1881. To the White House: The President's tragic
death was a sad necessity, but it will unite the Republican party
and save the Republic. Life is a flimsy dream and it matters little
when one goes. A human life is of small value. During the war
thousands of brave boys went down without a tear. I presume the
President was a Christian, and that he will be happier in Paradise
than here. It will be no worse for Mrs. Garfield, dear soul, to part
with her husband this way than by natural death. He is liable to
go at any time any way. I had no ill-will toward the President.
His death was a political necessity. I am a lawyer, a theologian
and a politician. I am a Stalwart of the Stalwarts. I was with
General Grant and the rest of our men in New York during the
canvass. I have some papers for the press, which I shall leave with
Byron Andrews and his co-journalists at No. 1420 New Yark Avenue,
where the reporters can see them. I am going to the jail.

Charles Guiteau.

(2) To the Press and Public: I cannot be interviewed on the
President's removal. I have said all I need to in these notes.

Charles Guiteau.

(3) Written on a telegraph blank: To General Sherman: I
have just shot the President. I shot him several times, as I wished
him to go as easily as possible. His death was a political necessity.
I am a lawyer, theologian and politician. I am a Stalwart of the
Stalwarts. I was with General Grant and the rest of our men in
New York during the canvass. I am going to jail. Please order
out your troops and take possession of the jail at once.

Very respectfully, Charles Guiteau.

32 XIV. AMERICAN STATE TRIALS.

(4) To The American People: I conceived the idea of removing
the President four weeks ago. Not a soul knew of my purpose. I
conceived the idea myself and kept it to myself. I read the news-
papers carefully for and against the administration and gradually
the conviction settled on me that the President's removal was a
political necessity because he proved a traitor to the men that made
him, and thereby imperiled the life of the Republic. At the last
presidential election the Republican party carried every northern
state. Today, owing to the misconduct of the President and his
Secretary of State, they could hardly carry ten northern states.
They certainly could not carry New York and that is the pivotal
state.

Ingratitude is the basest of crimes. That the President under
the manipulation of his Secretary of State has been guilty of the
basest ingratitude to the Stalwarts admits of no denial. The
expressed purpose of the President has been to crush Gen. Grant
and Senator Conkling and thereby open the way for his renomina-
tion in 1884. In the President's madness he has wrecked the once
grand old Republican party and for this he dies.

The men that saved the Republic must govern it and not the
men who sought its life. I had no ill-will to the President. This
is not murder. It is a political necessity. It will make my friend,
Arthur, President and save the Republic. I have sacrificed only one.
I shot the President as I would a rebel if I saw him pulling down
the American flag. I leave my justification to God and the American
people. I expect President Arthur and Senator Conkling will give
the nation the finest administration it has ever had. They are
honest and have plenty of brains and experience.

Charles Guiteau.

(5) Washington, Saturday evening, June 18, 1881. I intended
to remove the President this morning at the depot as he took the
cars for Long Branch; but Mrs. Garfield looked so thin and clung
so tenderly to the President's arm my heart failed me to part them
and I decided to take him alone. It will be no worse for Mrs.
Garfield to part with her husband this way than by natural death.
He is liable to go at any time, any way. C. G.

(6) To the New York Herald: You can print this entire book
if you wish to. I would sugest that it be printed in sections, i. e.,
one or two sections a day. The object is to preach the Gospel.
If you do not use it please return it to me through your Washington
correspondents as it is the only copy I have. I intend to have it
handsomely printed by some first-class New York publisher, but the
Herald can have the first chance at it.

Very truly, Charles Guiteau.

(7) Personal Mention. I have been in politics since June, 1880.
Before that for two or three years I was in theology. 1 am the
author of a book called "The Truth, a companion to the Bible."
Prior to '71 I practised law in Chicago. From '71 to '75 I practised

CHARLES J. GUITEAU. 33

law in the city of New York. In '75 I returned to Chicago but
have practised little since I left New York. Since '77 I have been
away from Chicago most of the time although I consider that my
home. I have been in New York, Boston and Washington for
nearly two years. I was on the Stonington when she struck the
Naragansett on my way from Boston to New York, intending to
take the stump for Garfield. I was in New York from June till
March 5, when I came to Washington. I was an applicant for the
Paris consulship. I presume I should have got it as General Logan
favored my appointment and the President seemed to favor it and
agreed to leave it with 'Mr. Blaine. Blaine thought the President
would not remove Walker, the present consul. I thought he would
and the matter was pending at the time of the President's removal.
I called to see the President; I sent in my card and the President
said it would be impossible for him to see me then. So the matter
stood at the time of his removal. This speech was sent to some
of our leading editors and orators in August and it may have had
an influence on the canvass. It was about the first shot on the
rebel war-claim idea.

(8) To Byron Andrews and his co-journalists: I have just shot
the President. His death was a political necessity because he proved
a traitor to the men that made him and thereby imperilled the life
of the Republic. I am a lawyer, theologian and politician. I am a
stalwart of the stalwarts. I was with General Grant and the rest
of our men in New York during the canvass. I have some papers
for the press. I am going to the jail. You and your friends can
see them there. — Charles Guiteau.

(9) Washington, Monday, June 20, 1881.
The President's nomination was an act of God. His election was
an act of God. His removal was an act of God. (These three
specific acts of the Deity may furnish the clergy with a text.) I
am clear in my purpose to remove the President. Two points will
be accomplished. It will save the Republic and create a demand
for my book, The Truth. This book was not written for money.
It was written to save souls. In order to attract public attention
the books needs the notice the President's removal will give it.

C. G.

George C. Maynard. Am an owe him $25; that's all there is

electrician. Loaned Guiteau $10 in it.

in March and $15 in June last. Cross-examined. Thought

He said he was in debt for his Guiteau looked seedy and hun-

board. Gave me a due-bill which gry and had a sort of skulking

he has not paid. gait.

Guiteau. I do not think it Guiteau. I lived in first-class

anybody's business whether I style and wore a $70 suit of

owed $25 or some one owes me. clothes; knew plenty of public

Maynard is a good fellow and I men and had all the money I

34

XIV. AMERICAN STATE TRIALS.

wanted. I had a big load on my
mind about that time.

Joseph U. Burkhart. Am clerk
to Mr. Maynard; gave Guiteau
$15; saw him the day before the
shooting; thought his walk and
the way he held his head a little
peculiar.

John O'Meara. Am a dealer
in sporting goods here. On June
8 sold a pistol to Guiteau. Could
not identify it as there were
thousands just like it. He asked
me how to test its accuracy and
I told him to go down by the
river and practice.

Guiteau. I desire to announce
to the Court that I invited John
B. Townsend of New York and
Leonard Swett and A. S. Trude
of Chicago to assist me. There
is plenty of brains on the other
side and I desire as much on
mine in the interest of justice.

Colonel A. 8. Rockwell. I
was with the President's party
at the station when Mr. Scoville
acknowledged the killing.

Chiiteau. No your Honor we
acknowledge the shooting, but
not the killing.

General David G. Swaim. Am
Judge Advocate General. Was
with the President's wife and
daughter at Elberon, N. J., the
day he was shot. We returned
at once. I remained by his bed-
side constantly until he was
taken to Long Branch, and then
until he died, and accompanied
the body to Ohio, where it was
buried.

Dr. D. W. Bliss. Have been a
physician and surgeon for thirty
years; took charge of the Presi-
dent at the depot about fifteen
minutes after he was shot and
until his death.

The witness gave a narrative covering the entire history of Presi-
dent Garfield's sufferings. He detailed at length the progress and
symptoms of the case, indicating by means of a wired skeleton the
course the ball had taken and the manner in which death had been
produced. The immediate cause of death was hemorrhage. The
wound made by the ball was the direct cause of death.

Mr. Robinson. State concisely but accurately what was observed
on each date from the time of shooting until the time of death.
Describe all the symptoms observed each day and also what was
done. Begin with the first day.

The witness made the statement, which was interrupted by in-
quiries and responses, as to the medical consultations held prior
to the arrival on 4th July of Drs. Agnew and Hamilton.17 Mr. Rob-
inson inquired as to the location of the abscess, the incision into
the pus sac, the muscles or organs through which the ball passed,
the inclination at which the ball struck the spinal column, its
force, the fragments of bone that were found during life and at
the autopsy and the condition of the wound as discovered in the
autopsy.

17 A small pasteboard box was opened by the District Attorney
and a section of a human vertebrae taken out. Holding it up he
asked: "Dr. Bliss, do you recognize this?" There was a sensation
among the audience as with straining eyes and craned necks they
waited for the answer: "I do; it is a portion of the vertebrae of
the late President James A. Garfield."

CHARLES J. GUITEAU. 35

He inquired as to the consultations that were held, up to the
arrival of Drs. Agnew and Hamilton, and what was said by the
physicians. Dr. Bliss said he could not give that information, but
he could state the conclusions, which he did. Mr. Scoville inquired
minutely as to the formation, growth, and final rupture of the sac
formed on the artery, which had been cut by the ball. Also as to
who had authorized him to take charge of the case. Witness an-
swered that the request had been made to him on the morning of
3d July, by the President, no one else being present but Mrs. Gar-
field. Mr. Scoville also inquired minutely about the probing of the
wound; about the supposed internal hemorrhage the first day; about
the pus cavity and the openings made to it, and about the quantity
of morphine administered; the probing and washing of the wound,
and the possibility of its having been thoroughly probed, if the real
track of the ball had been known from the first. Asked by what
authority most of the doctors who had been originally in attend-
ance were discharged, witness said it was by authority of the Presi-
dent, given in the presence of Mrs. Garfield and himself. Was asked
as to where the ball had been found, he replied that all the viscera
had been taken out and placed in a bowl, and that in that bowl
the ball was found in its cyst.

Mr. Davidge could only infer from the cross-examination that it
was the intention of the defense to endeavor to show that the
death of President Garfield had resulted from maltreatment on the
part of the surgeons who had charge of the case; it would be a
novelty if one human being could put a ball into the body of an-
other, and, when arraigned for murder, defend himself on the
ground, that possibly or probably, some other treatment than that
adopted by the surgeons called in might have been used to advan-
tage. There was not a shadow of truth in the pretension set up
on the other side. But until it was asserted here that the surgeons
killed the President, and that the ball planted in his body was not
the agent, or at least a contributing agent, any evidence of mal-
practice was wholly inadmissible.

Mr. Robinson proceeded with the cross-examination, insisting on
details and the record of the symptoms throughout, based upon the
physician's notes.

Mr. Davidge. What elements of danger are there attending on a
wound such as the President's?

Dr. Bliss. The injury to the body of the back-bone and the ver-
tebrae in gun-shot wounds is liable to produce blood-poisoning.

Q. Was the wound mortal? A. Yes.

Guiteau. I understand that there are one or two disreputable
characters hanging around this Court. The Chief of Police has
kindly given me a guard. I have a body guard. I want to notify
all disreputable persons that if they attempt to injure me they
will probably be shot dead by my body guard. I have no fears,
for my personal safety. There has been a good deal of loose talk
about this subject for the past week and I want this matter under-
stood.

36 XIV. AMERICAN STATE TRIALS.

November 21.

Mr. Robinson. Self respect requires me to notice a statement in
the Post in which Mr. Scoville finds fault with my line of cross-
examination of Dr. Bliss on Saturday looking to the plea of mal-
practice, and saying that he would ask the court to relieve him of
my association. The same counsel who thinks it such a breach of
etiquette for me to make without consultation a motion which orig-
inally had his concurrence and approval, esteems it no breach of
etiquette to announce his concurrence with me in the expediency
of my retiring from the case, through the columns of the press. I
can have no further association of any kind with such a counsel;
no odium attaching to this prisoner, no animadversions of the
public would ever have induced me to abandon this defense.

The prisoner. I want Mr. Robinson to stay now.

Mr. Robinson. There is no other alternative. I must ask your
Honor to give me an honorable discharge.

The prisoner. That is an able speech, and I agree with most of
it. If it had been made last Monday, there would have been no
disturbance between us. I sympathize with Robinson; not with
you, Scoville, in this matter of malpractice. He has got the true
idea of it.

Mr. Scoville regretted that any difficulty had arisen between them,
and attributed it to their different dispositions. He complimented
Mr. Robinson on the ability which he had shown in arranging the
defense, but made no opposition to his retiring.

Judge Cox. The thanks of the Court are due to Mr. Robinson,
for the promptness with which he responded to the request of the
Court, and participated in this defense, at a great professional sac-
rifice. I perceived from the start that he was placed in a position
of unpleasantness. As Mr. Scoville is thoroughly master of the
case, I grant Mr. Robinson's application.

Chiiteau. I desire the record to show I appear here as my own
counsel. The idea of malpractice is this — that according to the
physician's statements, the President was not fatally shot on the
25th of July at the time they made the official examination and said
he would recover. If he was not fatally shot on the 25th of July
we say that his death was caused by malpractice. My defense here
is that it is the Deity's act and not mine, and I expect that He can
take care of it. He has taken care of it very well so far.

Dr. Joseph K. Barnes. Am testimony of similar effect.
Surgeon General of the U. S. Dr. D, s. Lamb. Am a U. S.
Army; assisted in dressing Pres- Army surgeon; made the au-
ident Garfield's wound from the topsy; the gun-shot wound was
3d July to the 7th September; the cause of the death; have ex-
was present at the autopsy; the amined the records; found no
wound was mortal and was the cause of an injurv to the same
cause of Mr. Garfield's death. extent in wMch the man had re_

Dr. Joseph D. Woodward, act- covered; it was a mortai wound,
ing surgeon, U. S. Army, gave

CHARLES J. GUITEAU. 37

MR. SCOVILLE'S OPENING FOR THE DEFENSE.

Mr. Scoville. Gentlemen, the simple question in this case is (for
that he committed the act we do not deny), whether he was in such
a condition of mind as that he should be held responsible. On this
point there would be a great deal of expert and therefore contra-
dictory testimony. You should consider that the experts on the part
of the Government are being paid two hundred dollars a day, and
that even these scientific men have not reached that height beyond
passion and feeling and love of money as that those things could
have no influence on their feelings or judgment. But not a single
expert witness for the defense would be paid and their testimony,
if in favor of the prisoner, would expose them to condemnation and
ostracism in the community where they reside. The popular feeling
against the prisoner has been manifested in three separate attacks
on his lifeis — the last one was being commenced by the newspapers
all over the country. The popular feeling will show itself in the
testimony of the expert witnesses, so I asked the jury to be con-
siderate and candid toward the defense; do not ask for any odds
when it comes to fact, for the defense will erect an impregnable
wall and fortress which all the power on the other side cannot over-
throw.

November 22.

Mr. Scoville. The defense set up insanity. There was consider-
able antipathy against, but it is quite as often put forward as a per-
fectly just defense as it is an unjust one. The prisoner since he
has been in Court has done many things which may have influ-
enced you. But you should keep your minds open so that when

is Shortly after the prisoner had been taken to prison, the Secre-
tary of War, in view of the public anger and excitement, and the
likelihood of a lynching, ordered a company of cavalry and infantry
to guard the jail. In a month before the trial began one of the
prison guards, Sergeant Nason, when releasing the guard on duty
shot at Guiteau through the window of his cell, but missed him.
Throughout the trial several guards, in addition to the regular
court constables, were specially employed to protect him. Every
day between the court room and the jail his appearance was greeted
with groans and hisses by people in the streets. Guiteau well un-
derstood the danger, for he could never be induced to leave his
chair when he was addressing the court or making his speeches to
the jury. And this very day as he was being taken back to jail
a man on horseback fired a shot into the prison van, inflicting a
flesh wound on the prisoner, who crouched down in the bottom of
the vehicle and cried to the driver to hurry to the jail, evidently
thinking that this was the first act of a mob. The would-be avenger
was a prosperous farmer of the vicinity named William Jones.

38 XIV. AMERICAN STATE TRIALS.

the sworn evidence is produced you can weigh it and accept what
is shown to be the fact.1^

Ascertain whether he is trying to deceive or not, because if not
he is entitled to the protection of the law; it is a very difficult
thing to feign insanity so as to deceive experts. The defendant
did not know anything about insanity; had never visited an insane
asylum and had never given the subject any thought or attention.
Yet it was said that he was simulating and the newspapers and a
good many people in the community had been as hasty in passing
judgment on this subject as on others. The District Attorney has
repeatedly said that the prisoner was only feigning insanity. It is
absolutely impossible for a man who never knew anything about
it to feign insanity so as to deceive an expert.

Guiteau. I never feign, I act myself out, sane or insane.

Mr. Scoville. Having been acquainted with defendant since he
was a boy, the first thing I said when I heard of the act was: "He
is crazy," just as many others had said, just as President Garfield
had said, "What is the man doing; he is crazy;" just as Secretary
Blaine had said: "Why was this done? the man must be crazy."

Mr. Corkhill. I deny that President Garfield made such a re-
mark, and Secretary Blaine had stated that he believed him to be
sane.

Mr. Scoville. I have seen statements in the newspapers to the
contrary effect, and the point occurred to me as an illustration. A
person feigning insanity forgets things, and pretends to be mud-
dled and confused. Nothing of that kind could be found about
Guiteau. He did not profess to forget anything; on the contrary,
he professed to remember everything. A person feigning insanity
always felt it incumbent upon him to be insane all the time, while
one really insane was in different moods at different times. The
former always hesitated in speaking, the latter never. The pris-
oner did not act like one simulating insanity.

The prisoner is of Huguenot descent, imbued with the religious
spirit which led half a million of the best people of France to
leave their homes and possessions, and go out in foreign lands.
His grandfather was a physician, who settled in Utica, N. Y., over
ninety years ago. He had ten children, and some of their very
names would show this religious tendency. They were Abraham,
Luther (the prisoner's father), Martin (dividing Luther's name be-
tween two of the sons), and Calvin. Two of the girls were Julia
and Mary. Julia married a Mr. Raymond, who had settled in
Michigan, and Mary married a Mr. Parker. Julia was deranged
during the last weeks of her life, her delusion being that her
family was going to the poorhouse, although her husband was a
very successful and prosperous merchant in Ann Harbor. A daugh-
ter, Abby, was a bright girl until fifteen, when she began to lose

is Here he cited at length from the books the progress of the
Courts on the question of insanity.

CHARLES J. GUITEAU. 39

her reason on the subject of religion. Her first remark to an ac-
quaintance would be: "Do you love Jesus?" She is now in an
insane asylum. Another daughter of Mrs. Raymond was partially
deformed, one side of her head not being fully developed. These
things have weight on the question of hereditary insanity. Mrs.
Parker (Mary) afterward married, returned to Oswego insane, and
died in that condition. Mrs. Parker had a son, Augustus, who in-
herited the musical talent of his father and the insane taint of his
mother; disappointed in not getting the piano agency of the
Decker's of New York, he became insane, was sent to the insane
asylum and died there. One of the brothers, Abraham, during the
latter years of his life, was not insane but weak-minded, having no
control over himself, and died in that condition. The second son
(Francis W.) while a young man became disappointed in love and
challenged his rival to a duel, but the pistols were loaded with
blank cartridges. When he came to know that, his mortification was
so intense that he became insane. Another brother, Luther, the
prisoner's father, was eccentric and peculier, especially in his
religious views, going to such extremes as might propertly be
termed insanity. One of his beliefs was that he had come to such
a vital union with Christ that he was part and parcel of the Sa-
viour himself, that he would live on forever, just the same as the
Saviour. Another time, he imagined that a great Masonic cele-
bration in Chicago was for the purpose of his funeral, and in trav-
eling he refused to go through Chicago, because he did not want
any such demonstration made over him.

Now we come to the prisoner himself. His mother was ah
amiable woman, gentle and affectionate, and his father had the same
traits. She had six or seven children, and died at thirty-five. At
his birth she was sick with fever, so that the physicians deemed
it necessary to shave her head. Afterwards two more children
were born, one of them deformed, and both died in infancy. The
mother died when the defendant was seven. There was nothing
peculiarly noticeable in him when he was young. His father did
not give proper attention to the boy, but he grew up bright, intel-
ligent, gentlemanly, gentle and loving. His father married again,
and the son helped him in his office of Recorder of Freeport. He
could not pronounce the word "quail," but always called it "pail;"
so in the little song, "Come along, old Dan Tucker," he would al-
ways say: "Ped along". His father one day gave him such a whip-
ping as an intensely religious man can give, and immediately
afterward he looked up at his father and said, unconsciously,.
"Ped along". At eighteen he felt the want of an education and be-
gan to think on religious matters. His father believed in the
Oneida Community.so community of goods and living together.

20 A religious society established in 1847 on Oneida Creek,
Madison County, N. Y., by John H. Noyes. Originally it was strictly
communistic, all property and children belonging to the Community,

40 XIV. AMERICAN STATE TRIALS.

He had gone from one denomination to another, finding none of
them sufficiently advanced to come up to his ideas, and finally
struck the Oneida idea. The son wanted to be a lawyer and wished
to go to school. He had $1000 left him by his maternal grandfather
and finally his father told him that he might take this money and
go to school. Thereupon he went to Ann Arbor to enter the Uni-
versity, but he was found unqualified and he went to the high school
where he remained for some months, studying at the same time
his lessons, his Bible and the doctrines of the Oneida Community.
Finally he left school and went to Oneida, where he joined the
Community and put his money into it. He fully believed that was
the only road to heaven; he stayed there five years. He was con-
vinced that their religious system was the correct one; that it was
designed to supplant all the kingdoms of the world, and that he
himself was to be the head and ruler of that system. That might
be said to be egotism, but insane people were often possessed of
extreme egotism. Lawrence, who attempted to assassinate Presi-
dent Jackson, believed that he was entitled to the crown of America
and of England, and when he was arraigned in Court he asked
why he was brought before such a tribunal. He showed just as
much egotism as Guiteau did. The leaders of the Community did
not recognize his pretensions, but considered him a very common
sort of person. Finally they sat down on him. In April he told
them he wanted to go to New York. They fitted him out with new
clothes, gave him some books and money and let him go. His idea
was to start a religious newspaper which would advocate the prin-
ciples of the Oneida Community, and revolutionize the world. He
went over to Hoboken, where he lived on crackers and dried beef
occasionally. His paper was to be a daily and to supplant all other
papers. It was to be called the Daily Theocrat. He worked on
that idea for weeks and months. Of course he had no success and
then went back to the Community and remained there until No-
vember, 1866. Then he became dissatisfied and went away at night
(feeling as though he were going away from the road to heaven))
to New York, where he studied theological books, read his Bible
and visited the Y. M. C. A. rooms. He then studied law and drifted
to Chicago and was admitted to the Bar. The man who passed on
his qualifications was C. H. Reed of Chicago. Reed asked him three
questions, of which he answered two and missed one. That was the
way he got to be a lawyer. His practice soon ran off into a col-
lection business, when he succeeded well and got a comfortable liv-
ing for himself and wife, for he was at that time married. But he,
could not transact legal business.

Guiteau. I never had the reputation of being a fool when I was
a lawyer. I gave them all they wanted on the other side. Mr.
Reed gave me the certificate; General Reynolds, the gentleman

and all marriage restrictions being abolished. But through great
opposition to this in the state, marriage and family life were in-
troduced in 1879.

CHARLES J. GUITEAU. 4)

right behind you, made the motion. Go on! Scoville! that is an
interesting story and correct in detail.

Mr. Scoville. After the great fire he went to New York, and be-
ing a person of most gentlemanly address, pleasant and agreeable,
he had no difficulty in going among entire strangers and getting
collection business.

At that time and all times he was a gentleman, if being gentle
in manner, gentle in speech, kind and considerate, constituted a
gentleman. When in New York he never visited saloons, never
used tobacco in any shape, never drank spirituous liquors, never
visited gambling places and would not talk with any person who
used improper or profane language. But in Chicago, in a larceny
case, to which he had been assigned, he made such a rambling
speech that he convinced Mr. Reed, the District Attorney, that he
was insane.

Guiteau. That is absolutely false. I never tried a case with
Charlie Reed in my life. But I do not want to interfere with your
theory.

Mr. Scoville. His capacity for business (such as it was) began to
diminish and he was not able to pay his board, but that was not a
capital crime. He had neither the mental nor the physical capacity
for hard work.

Guiteau. I had brains enough, but I had theology on the brain.
That's the reason I didn't run the law. There's no money in the-
ology, but I am out of that business now. I was always well
dressed. I left a $5000 law business to do that kind of work, but
you see how I came out. I was doing the same kind of business
that St. Paul did. He got his reward after awhile and I expect
to get mine from my book.

Mr. Scoville. You will hear how he threatened his sister with an
axe. The family physician, Dr. Rice, declared him to be insane,
but harmlessly so. He then went to Chicago again. Moody and
Sankey were holding meetings and he became an usher. Hearing
a minister speak about the second coming of Christ, in January,
1879, he started to lecture upon it. He met with failure everywhere.

Guiteau. I have heard that axe story before, but it is absolutely
false. And I wasn't quite a failure either. I dead-headed from
Toledo to Washington on the strength of the Lord, and I was only
put off twice. I was traveling on my appearance. Not only did I
visit Washington, but all the other large cities. I am glad I did
it. I was working for the Lord.

Mr. Scoville. His idea was, that if he could not pay his hall rent,
neither could the Saviour pay His. He was trying to serve the
Lord, and he had to have some place to serve Him in. If he could
not pay his hall rent it was not his fault; it was the fault of the
people. Everything he ever did was done in earnest, and, there-
fore, since he has been confined in jail, he has in sober earnest given
out items of his life; writing letters to get a wife; that he expected
the time to come when the great danger which hangs over his
head would be removed; when he would be vindicated, as he calls

42 XIV. AMERICAN STATE TRIALS.

it, by your verdict; "when he could go out a free man, and could
reciprocate such attentions, and could make himself the honored
husband of an honored wife. I say that he has done that in good
faith, believing everything to be just as I stated. It "was no joke
■with him, and yet the prosecution say that he is a sane man.

Guiteau. It is not true that I think any lady would marry me.
I did put a notice in my biography, which the Herald published,
stating, that any young lady who wished to correspond with me
would be properly received. There's no joke about the matrimonial
proposition; that's business. I got a response from a lady worth
$100,000. That's no joke, I am sure.

Mr. Scoville. I think such evidence is competent.

Ouiteau. I never wrote such letters. You have lied. You will
not have any success with the Lord by lying. You have lied. I
have found you out. When a man lies to me once I never believe
him again. You have lied to me once and that is played out.

Mr. Scoville then read letters addressed to Mrs. Scoville and
some to himself. Those of the earliest date (1858), showed nothing
peculiar, but gradually they drifted into a religious turn, quoting
texts of Scripture, and appealing to his sister to turn to God. The
first letter, dated in February, 1861, supported the doctrines of the
Community. The last letter from Oneida, dated October, 1866,
stated that his views had changed; that he desired to leave the
Community and go to New York to qualify for a position in some
bank, and asking Mr. Scoville to send him fifty dollars.

The prisoner. I was recovering from my insanity then, got up
under their influence. I was getting my eyes open then, away from
those miserable people. I had been six years subject to their
fanaticism.

Mr. Scoville. As a boy he was called Julius, his middle name.

Ouiteau. I never liked the name and I won't have it. There is
too much of the negro about it.

Novemoer 23.

Ouiteau. Yesterday I used the word Julius in connection with
the negro race. I meant no discredit to the race. The truth is
that no prejudice was held 20 years ago. It is getting now so
that a colored man is a great deal better than a white man.soa

Mr. Scoville. Read Guiteau's letters. The first (1865), stated
his purpose of starting a great theocratic daily paper in New York.
He said that his paper was to be an illuminator, and to point out
the devices of Satan's emissaries. "I claim inspiration. I claim
that I am a member of the firm of Jesus Christ & Co., the very
ablest and strongest firm in the universe, and that what I can do, is
limited only by their power and purpose." The next was from
the Chicago jail (1877), where "he had been put by a client about a
difference of $20" and asking for help.

20a He had evidently recalled that there was a negro on the jury.

CHARLES J. GUITEAU. 43

Ouiteau. I had been on theology for some time, was out of money.
A client, a miserable little whelp, had me arrested. I never got
much from my father. He got down on me because I left the Com-
munity— we could never after agree on that miserable, stinking
Community business. I'm mad every time I think of it. It kept
me out of fellowship with my father up to the time of his death.

Mr. Scoville. Guiteau's career as a politician shows that his in-
tellect was deficient. His running around from one committee-room
to another, seeking to be employed as a campaign speaker, and his
failure to obtain recognition, for example.

Ouiteau. 'Twasn't because I had no ability, but I was not known.
I had the ideas but not the reputation. They wanted big guns like
General Grant and Senator Conkling — men who would draw. I
presume I'd draw now.

Mr. Scoville. His speech, "Garfield vs. Hancock," was a mere
jumble of ideas collected from the newspapers and from speeches of
others. No one but a crazy man would have imagined, as Guiteau
did, that his speech possessed any merit.

Ouiteau. I object to your theory on that score, and when you
try to make out that I'm a fool, I'm down on you. I want you to
tell the truth, but you needn't try to make me out a fool. I say
the Deity inspired my act, and He will take care of it. I want the
truth and that's all there is about it.

Mr. Corkhill protested against the interruptions of the prisoner.

Ouiteau. 'Tis not necessary to make any remarks, Colonel, just
let the matter drop.

Mr. Scoville was willing to join the District Attorney in any
measure to attain that end.

Ouiteau. I will keep still if Mr. Scoville will only speak the
truth. I commend the prosecuting attorneys for the liberal man-
ner in which they are conducting the case.

Mr. Scoville. You have heard his absurd ground for expecting
to obtain an office and how Guiteau finally came to the conclusion
that the only way to restore peace in the party was to remove the
President. I blame the newspapers for bringing him to this frame
of mind. The evidence would show that the matter was always
preying on his mind, and it became his fixed and firm idea that
his duty to his country and God required him to remove the Presi-
dent. This course owed its origin to that office-seeking element
of political contest, and the blame of it must be located on modern
politics. If the jury find that this man was insane, the same ver-
dict would say that the blame rested on the politicians of the
present day. It could not be otherwise.

It has to be determined here, whether your fellowman, with all
his misfortunes and all his shortcomings, is to end his life on the
gallows. This question will be submitted to you by the evidence,
with the confidence that you will do what is right according to your
conscience and what will meet with the approval of 3rour country-
men and of your God.

44

XIV. AMERICAN STATE TRIALS.

THE WITNESSES FOR THE DEFENSE.

H. N. Barton. Am a clergy-
man of Illinois, formerly a resi-
dent of Kalamazoo. Attended
the lecture delivered by Guiteau
on "The Second Coming of
Christ." Cannot say that my
opinion then was that he was so
insane as not to be responsible.
I thought him not so much de-
ranged as very badly arranged.

Hiram H. Davis. Formerly in
Kalamazoo. He knew the family
of Wm. S. Maynard, the husband
of Julia Guiteau, prisoner's aunt.
Knew of her complaining that
she would have to go to the
Poor House, her husband being
a prosperous merchant. Knew
her daughter Abby. The boys
used to call her "foolish Abby,"
she was a fool; she was always
talking about religion, and al-
ways wore a large bonnet.

Thompson Wilcoxson. Knew
the father of prisoner intimately
from 1840. One peculiarity of
his was that he never expected
to die. He was always sincere
and honest. He first belonged
to the Presbyterians and then to
the Methodists and relapsed into
the Oneida belief.

John A. Rice. Am a physician of
Myrtle, Wis. First saw the pris-
oner in summer of 1876 at Mr.
Scoville's house to inquire into
his mental condition. Came to
the conclusion he was insane on
account of hereditary influences
and the exaltation of his emo-
tional nature. Detected inco-
herence of thought and exces-
sive egotism, also an intense
pseudo-religious feeling. Was
always talking about Christ and
Christianity without apparently
having become impressed with

the moral principles of Christi-
anity. Thought Guiteau ought
to be secluded and so told his
friends, but before steps could
be taken he borrowed some
clothes and disappeared. Knew
the prisoner's father. Was called
to attend him during his last
illness, at Mr. Scoville's. Did
not observe any delusions, but
great obliquity of thought on
religious subjects. He frequently
exclaimed during his illness
that his sickness was entirely
unnecessary, that if he had lived
with proper faith and had
brought himself in proper rela-
tions with Christ, there was no
necessity for him to be sick, and
that he thought he might live
forever. Noticed in him petu-
lance and fault-finding to the
greatest extent I had ever
known.

Frank L. Union (Boston). In
September, 1879, prisoner hired
a hall from me to deliver a lec-
ture. Told me he had no money
but would take up a collection
and give me the first $15. His
program was, "Do not fail to
hear the Hon. Charles Guiteau,
the little giant from the West.
He will show that two-thirds of
the race are going down to per-
dition." There were about fifty
at the lecture. He commenced
by reading half-dozen lines and
then skipping half-dozen pages.
Went on without any connection
whatever and in half an hour he
left the platform in a hurry and
the audience held a conference
and agreed the man was crazy.

Cross-examined. The hall was
the resort of the liberals, the
building having been erected in

CHARLES J. GUITEAU.

45

honor of Thomas Paine. I vol-
unteered as a witness after read-
ing Mr. Scoville's appeals.

Ouiteau. I left in disgust at
the audience.

Mary S. Lockwood. Prisoner
boarded at my house in Wash-
ington for a month, in March,
1881. His reason for leaving
was he did not pay his board.

Ouiteau. I was there a month.
I paid five dollars and owe her
twenty. This kind of evidence
is irrelevant and I object to it.
I presume there were people in
the house who thought I was a
little cranky. They were too
kindhearted and polite to annoy
me about board bills; very nice
ladies, Christian ladies, good
people in every way. General
Logan and a lot of high-toned
people boarded there. I recom-
mend it as a boarding-house.

Cross-examined. There was
nothing peculiar in Guiteau's
manner except his abruptness.

Norwood Damon (Boston). At-
tended the lecture and supposed
the man must be insane.

George W. Olds (Traverse,
Wis.). Was employed in sum-
mer, 1876, on Mr. Scoville's sum-

mer place. One day Mrs. Sco-
ville called me and said in pres-
ence of prisoner that he was
crazy and had attempted to kill
her with an axe; told me to put
him off the place. He seemed
much excited about Mrs. Scoville
saying that he was crazy and
said that she was the crazy one
and that if she were taken away
and put in an insane asylum
everything would go nicely.
Guiteau, when he was set to
work to weed turnips and straw-
berries, pulled up more turnips
and strawberries than he did
weeds and when he was sent out
with a pan of soft soap to soap
some apple trees he soaped hick-
ory trees and said they were
fruit trees. He appeared like a
crazy man. I never changed
that opinion.

Cross-examined. Could not say
if he did not know the difference
between strawberries and weeds
and turnips and weeds.

Ouiteau. The whole axe busi-
ness is a lie. That is the short
way to put it. I never had any
anger towards my sister at all,
though no doubt she thought so.
As a matter of fact it is all
nonsense.

November 25.

Mr. Scoville stated that the prisoner desired to address
the Court. Judge Cox gave permission.21

Ouiteau. I propose to have all the facts bearing on this case go
to the Court and the jury, and to do this, I have been forced to
interrupt counsel and witnesses who were mistaken as to supposed
facts. I meant no discourtesy to them. Any fact in my career
bearing on the question who fired the shot, the Deity or myself,

2i Guiteau began to read from a manuscript without rising. Mr.
Scoville requested him to stand up but he firmly declined, stating
that he was not afraid to do so. Evidently, in spite of his denial,
he feared to make a target of himself.

46

XIV. AMERICAN STATE TRIALS.

is of vital importance in this case, and I propose that it go to the
jury. I am glad that Your Honor and the opposing counsel are
disposed to give a historical review of my life, and ask the press
and the public to do likewise. Last spring certain newspapers in
New York and Washington were bitterly denouncing the President
for breaking up the Republican party by improper appointments.
I would like those newspapers to reprint those editorials now, and
see how they would look and sound. In attempting to remove the
President, I only did what the papers said ought to be done. Since
July 2d they have been deifying the President, and denouncing me
for doing the very thing they said ought to be done. I want the
newspapers and doctors, who actually killed the President, to
share with me the odium of his death. I never would have shot
him of my own volition, notwithstanding those newspapers, if I had
not been commissioned by the Deity to do the deed. But this fact
does not relieve the newspapers from the supposed disgrace of the
President's removal.

It has been published that I am in fear of death. It is false.
I have always been a religious man, and an active worker for God.
Some people think that I am a murderer, but the Lord does not,
for He inspired the act, as in the case of Abraham, and a score of
other cases in the Bible. I warn all cranks of high or low degree
to keep away from me under penalty of instant death.

Joseph E. Smith (Freeport).
Knew the prisoner's father from
1846 to his death. Was a sin-
cere man, standing well with the
community and carried on a
good business. He was recorder
of deeds and the police magis-
trate; was excitable on religious
topics.

E. O. Foss (Dover, N. H.).
Was at the depot when Presi-
dent Garfield was shot; saw Gui-
teau taken in charge; from his
appearance and what he said
thought the wrong man had
been arrested. He bad an indig-
nant look as though people were
not carrying out his orders.

Charles H. Reed. Was State's
Attorney of Chicago from 1864
to 1876. Recall that prisoner,
being assigned to defend small
larceny case, a rambling, wan-
dering speech full of vagaries
and quite illogical. He talked
about theology and divinity and

the rights of man. Saw him at
the Riggs House the Tuesday
preceding the shooting. He
asked to borrow $15 promising to
pay it when he obtained the
Paris Consulship. Said Mr.
Blaine was on his side and that
in a few days the papers would
announce his appointment. Had
seen him several times previous;
he spoke of the Paris Consulship
and became excited when I sug-
gested he obtain some inferior
office; thought he was off his
balance. Visited him in jail and
asked why he killed President
Garfield. He made a rambling
speech, saying, "I didn't do it,
the Lord did it. I was only the
Lord's instrument in removing
the President." He would show
great excitement, striking his
fists against the wall, then he
would relapse into a quiet state;
received the impression that he
was of unsound mind.

CHARLES J. GUITEAU.

47

Cross-examined. Had not told
Colonel Corkhill I had no doubt
of prisoner's responsibility. I
have no recollection of examin-
ing him or recommending him
for admission to the Bar of Chi-
cago.

Guiteau. I do not want to
contradict Mr. Reed because he
is a good fellow, but there is
not a word of truth in it. You
did admit me. You asked me
two or three questions. I don't
want any trickery.

The Court. If there is no
other way of preventing these
interruptions you will have to
be gagged. Keep your mouth
shut and don't interrupt again
during this trial. I don't desire
it, but if the trial cannot go on
without resort to gagging it will
have to be done.

Mr. Reed. He said that if he
did not get the Paris Consulate
he would make a fuss about it.

The Prisoner. I never said
anything of the kind and I never
thought anything of the kind.
That is the result of your imag-
ination, Mr. Reed. It is not true.
You are a good fellow and I
think a good deal of you, but
you are mistaken in your facts.

H. B. Amerling. Knew Luther
W. Guiteau. He believed that in
order to be healed all that was
necessary was to believe in Jesus
Christ; that the pocket-books of
all persons should be open to
everyone but that nothing more
should be taken out than was
right. I considered he was "off"
on religions and politics.

Thomas North (Chicago). Was
deputy clerk under L. W. Gui-
teau. He believed in perfect
holiness, in inspiration by the
Holy Ghost, in immortality on
earth by vital union with Christ.
Prisoner is an exaggerated fac-
simile of his father-

The Prisoner. I'm a little
larger than he was, a chip of
the old block.

North. One day prisoner came
to the table late and was spoken
to by his father in a peremptory
tone; he struck his father on
the back, the two clenched and
struggled until finally Charles
surrendered.

The Prisoner. I don't think
there is a word of truth in this
talk. I don't remember any-
thing about it and I remember
most everything.

Nov. 22.

Guiteau. I notice my friend,
Henry Ward Beech er, is doing
some cranky work on this case.
I used to attend his Church and
prayer meetings, and if Your
Honor knew him as well as I do
you would not pay any attention
to him. There are a good many
people that think he is badly
cranked, socially, and have no
doubt that Mrs. Tilton told the
truth, and that he lied about it,
and I tell him so publicly.

Mr. Davidge. Prisoner, that
will do for you.

Guiteau. That's all right,
Judge; I have had my say on
Beecher, I am satisfied.

John A. Loganfi* in March last

22 Logan, John Alexander (1826-1886). Born, Jackson Co., 111.
Served in the Mexican war, was a distinguished general in the Civil
war, and an unsuccessful candidate for Vice-President of the
United States in 1884; member of Congress (111.), 1867-1871; United
States Senator, 1871-1877, 1879-1886. Died in Washington.

48

XIV. AMERICAN STATE TRIALS.

prisoner came to my room twice
uninvited, handed me a paper
saying, "That speech elected Mr.
Garfield President of the United
States; "said he had the promise
of the Consul-Gen eral of France;
had seen Mr. Blaine who said it
was all right if he could get my
recommendation. I said, "I do
not know you and cannot recom-
mend you." To get rid of him,
I said, "The first time I see the
Secretary of State I will men-
tion your case to him." I did
not say that I would recommend
him but simply that I would
mention his case, and I intended
to do so, but in a different way
from what he supposed. I
thought there was some derange-
ment of his mental organization.
Said to my landlady, "I do not
think he is a proper person for
you to have in your boarding-
house. I think he is a little off
in his head."

George B. Hubbard. In 1863
prisoner worked for the Com-
munity. He worked in the same
shop with me; he was a nervous,
quick-tempered man ; if anything
was said to disturb him he
would get riled and would ges-
ticulate wildly; he would sit for
hours saying nothing to any-
body. Once he aspired to be the
leader of the Community.

Prisoner. There is no physical
restraint there, but it is all spir-
itual and social. If a man left
there he was led to believe that
he was forever damned. That is
the way the Community was
kept together.

Edmund M. Smith (Chicago).
Was a clerk to the Republican
Committee in New York. He
wanted to be placed on the rolls
as a speaker; he did not appear
as if he could put half a dozen

sentences together, and I did not
think that he had received any
assignment to speak.

Prisoner. The gentleman was
not in a condition to know
whether I did or not. He was
only a clerk. Jewell was the
fellow who did the business —
Jewell and Hooker and Dorsey
and the rest of us fellows.

John A. Moss. Saw the pris-
oner at the Executive Mansion
fifteen or twenty times. Thought
he was a crazy man.

Mrs. Scoville. Am prisoner's
sister. The prisoner is forty
years old. "Was about seven
when mother died. She was
sick a very long time; there
were two children born subse-
quently: Luther, who died when
he was two years old and was
born with a crooked foot and
limb, and Julia, who died when
twenty months old. Charles was
a troublesome child because he
was very active and smart; he
used the word "ped" for "come"
and the word "pail" for "quail."
His father punished him for it
but that made no difference. He
lived with me at Oak Park, near
Chicago; attended school there;
went back to Freeport and from
there to Ann Arbor to school;
there abandoned his studies and
gave his whole attention to
studying the publications of the
Oneida Community. I visited
him there; he acted like one
who had been struck on the
head or had partially lost his
mind; could not learn from him
whether he wanted to leave
there.

Prisoner. I had been there
three years at that time and
right in the heart of their fan-
aticism.
Mrs. Scoville related his his-

CHARLES J. GUITEAU.

49

tory, his admission to the bar
(at which she was very much
surprised), his marriage and his
separation from his wife, down
to the time he visited her in
Wisconsin in 1875. Noticed then
a great change in his personal
appearance; he was also very
hard to get along with and he
used to get in a "highfalutin' "
state; he seemed willing to do
anything that he was told but
he got very much befogged and
could not do it. He attacked
me with an axe; had given him
no provocation but was out of
patience with him; it was not
the axe that frightened me so
much as the look of his face; he
looked like a wild animal.

Nov. 28.

Mrs. Scoville. He was wild in
his ideas and had visionary
schemes, such as buying up the
Inter-Ocean, etc. He spent most
of his time reading the news-
papers and a Testament which
he kept in his pocket; said he
was preparing to go in with
Moody and Sankey. Finally my
son would not stand any more
nonsense and put him off the
place without my knowledge. I
had no doubt whatever of his
insanity; his mind was breaking
up. He denounced everybody
who did not believe as he did
and said they were going to hell.

George T. Barrows. Saw the
prisoner at Mrs. Scoville's coun-
try place; often talked with him
about his book and the second
coming of Christ till he became
violent. One day he dropped a
dog out of an upstair window
breaking the dog's leg; he said
he did not think it would hurt
the dog; he supposed it would
strike on its feet like a cat.

Thought prisoner was either a
fool or crazy; he was not sane.

Prisoner. I desire to tell all
these crank newspaper men that
I appear here as my own coun-
sel. That is my answer to all
this silly stuff they have been
delivering themselves of for
some days past. Some of these
newspapers have gone crazy.

Charles S. Jocelyn. Knew
prisoner when he was a member
of Oneida Community. He was
the most egotistical man I ever
knew. He was absorbed in him-
self and had such a high idea of
himself as to think himself a
superior being qualified to be a
leader and a manager of men.
Never noticed any insincerity
about him. He had a very strong
religious bias towards exaltation
and even fanaticism. He at-
tempted to deliver lectures
there, but they were mainly
made up of ideas rehashed from
former publications of the
Oneida Community.

John W. Guiteau. Am the
prisoner's brother (he went over
the prisoner's history so far as
known to him. ) Saw him next in
Boston, since have seen him sev-
eral times here in jail. He in-
sisted on the management of the
case and objected to several of
Mr. Scoville's ideas as to wit-
nesses. Supposed he might be
dangerous and managed to keep
him in front of me; thought he
might intend to harm me as we
had previously had some diffi-
culty. Soon found he was harm-
less. He said he would get
honor instead of dishonor; that
it would be "Guiteau, the Patri-
ot" instead of "Guiteau, the As-
sassin." Said he had acted under
an inspiration and was willing
to suffer or die for the principle

50

XIV. AMERICAN STATE TRIALS.

of inspiration. I said "Are you
willing to abide by the decision
of the jury and suffer the pen-
alty imposed by the Court if
they fail to agree to your
views?" said, "I am." I said,
"They say you are afraid of
your life." "That is not so," he
answered, "I do not care a snap
for my life." I said, "Which
would you prefer, to be hanged
by the verdict of the jury or
shot by the mob?" "I do not
want either," he cried. I became
satisfied that he was sincere as
to his reason for shooting the
President and thoroughly be-
lieved in the inspiration. Be-
lieve him insane.

Cross-examined. I have not
stated to others that I have no
doubt of his sanity and respon-
sibility. I believe my brother's
case was one of demonism — that
he was possessed of the devil. I
have stated that I had no doubt
of his responsibility before God;
that he had chosen evil instead
of good.

The Prisoner. My brother and
I were not in fellowship with
each other for years; he does
not come here with the ordinary
affection of a brother. "We were
always at loggerheads on ac-
count of his sympathizing with
my father for running me into
the Oneida Community. That is
the secret; I never liked him
and he never liked me. I like
him better now than I ever did.

Mr. Ouiteau. I can say the
same as to him. I never thought
so much of him in all my life as
I do now. He called at my of-
fice and complained that I had
told persons that he was worth-
less and would not pay his
board bills; that I had no busi-
ness to make any statement

about him or his indebtedness;
that I was no better than he
was; that I was in debt, which
unfortunately was true and we
had some strong talk. I told
him if he was honest he should
not deceive people about his
means of paying for his board.
He said that he wished to live
as Christ did. That Jesus Christ
went to a house and if the people
received Him He blessed them.
That he was working for God,
and that he considered God and
not himself responsible for his
board; we had some further
conversation and I drove him to
the wall, as I always did in con-
versation. He said I was no
better than he and he said as
he went along that I was a thief
and a scoundrel; I slapped him
on the side of the neck with the
back of my hand and he turned*
around and gave me one on the
side of the face, for which I very
much respected him.

Prisoner. He never struck me
and I never struck him, the rest
of the statement is true.

Mr. Ouiteau. I took him by
the collar and hustled him out
forcibly and harshly; I conduct-
ed myself as no man ought to
who professed a Christian life.

The Prisoner. I never saw my
brother from that time till I
met him in the jail two weeks
ago. That accounts for his poor
opinion of me.

Mr. Ouiteau. My father was
never insane; had heard that
Uncle Abraham was insane; my
Uncle Francis Guiteau died in
an asylum through mortification
at fighting a sham duel. Be-
sides Abby Maynard, the daugh-
ter of Aunt Julia, and Augustus
Parker, who was a cousin, had
never heard of any other case of

CHARLES J. GUITEAU.

51

insanity in the family. I believe
at some time in my brother's
life, as he had a free will to
choose good or evil, he must
have, through his wilfulness and
his perversity of nature, allowed
Satan to gain control over him.
On this I base my opinion that
he was morally responsible to
God but not responsible accord-
ing to human or legal respon-
sibility, being in one sense in-
sane.

The Prisoner. That's very
poor theology and a poor posi-
tion for you to take.

Mrs. Sarah W. Parker (Chi-
cago). Am the widow of Au-
gustus, one of the sons of the
prisoner's aunt Anna. He died
in the insane asylum; became
insane from disappointment in
not obtaining a piano agency
which he expected. Prisoner
and his wife came to my house
in 1876. My little daughter com-
plained that he used to follow
her on the street wanting to talk
to her and that she was afraid
to go out on the street alone;
thought him crazy and told me
so. I thought his mind was
cracked. He had paid attention
to my daughter; I did not like
to have him come at all.

The Prisoner. They were very
poor and I used to go down
there and give them money and

they appreciated that very much.
Incidentally, I became pleased
with the little girl who was very
smart. She was too young, how-
ever.

Fernando Jones (Chicago). In
1878 boarded at the same house
with Guiteau. Considered him
to be of unsound mind and what
some authorities would call in a
state of incipient insanity. He
was memorizing lectures on
Mormonism and the second com-
ing of Christ and talked very
incoherently.

Cross-examined, witness said
he had paid several visits to
Guiteau for the purpose of help-
ing him out of a difficulty in
regard to collecting money and
not paying it over.

The Prisoner. That part of
the statement is incorrect. It
was a high-toned place on Mich-
igan Avenue, in Chicago, and I
paid my board. Probably he and
other people thought I was very
cranky at that time.

Mr. Scoville presented a num-
ber of prisoner's letters dating
from 1857 to 1868 which were
identified by him.

Guiteau. This does not look
like my present handwriting;
there is a decided improvement
shown here. This is better than
I can do now. This is as fine as
steel plate.

November 29.

Mr. Scoville read a number of prisoner's letters to various persons
as follows (extracts) :

(1) To his sister eulogizing the Oneida Community.
The Prisoner. That is the way my father used to talk about it.
I was about seventeen when I wrote that and considerable of a
crank, too.

(2) To his sister: "My eternal marriage to Jesus Christ and His
people in this world, Hades and the resurrection world, is pre-
eminently paramount to every other attraction."

52 XIV. AMERICAN STATE TRIALS.

(3) To Mr. Scoville from the Community: "I have forsaken every-
thing for Christ — reputation, honor of man, riches, fame and
worldly renown — all hankering after the things of this world have
ceased, I hope, forever. This association is the germ of the kingdom
of God, and we expect, without wavering, by the steady, irresistible
advance of this association, the conquest of the whole world."

(4) To his father: Expresses his desire to extend the sovereignty
of Jesus Christ by placing at his disposal a powerful daily paper.
Says he was in the employ of Jesus Christ & Co. ; asks his father to
send him $100 or $200.

Ouiteau. Father didn't send the money; he thought I was badly
cranked. That is the way I felt about it. If I had any money or
friends I should have had them cleaned out, sure. I recognize it
as my work. It was like a retaliation for living at that hole.

(5) To all lovers of virtue: Says the Oneida Community is among
the most spiritual despotisms of the nineteenth century; that it
constantly violated the sacred laws of God and man; calls upon all
good people to frown upon such outrageous practises, upon mer-
chants to refuse to deal with members of the Community and upon
the pulpit and the press to denounce them.

The Prisoner. Some of the New York papers at that time sus-
tained that appeal by editorial comments. I am very glad to say
the Oneida Community is wiped out now. I was a virtuous man all
the time I was there.

(6) To his father from the Chicago Jail: "One of my clients
wrongfully caused my arrest; it got into the newspapers and two
or three of my other clients got badly scart and have to get $100
to settle with them. If John V. Farwell and other of my friends
were not out of town I would not be here five minutes."

The Prisoner. I had been arrested by an infernal little whelp
for $20. I was on theology and law together at that time and did
not attend to my business. The District Attorney released me.
That is all there is to that.

THE PRISONER'S TESTIMONY.

Guiteau (sworn.) (First relating his youthful years as stated by
former witnesses.) When I was about ten my father married
again, and for two or three years I worked in his office. I wanted
an education but he thought the only thing was to save my soul by
going into that stinking Oneida Community. The greatest outrage
ever perpetrated on a boy was the act of my father in running me
into that. I would have gone to school and college and a law
school if my father had been out of the way.

When I was eighteen I went to Ann Arbor, against his will, to
school but kept reading those Oneida books; he dosed me with
them every week so that I ruined my eyes. Sent $900 which he
had as my guardian to the Community, and that is the way they
got hold of it. I look upon the whole thing as the most distressing

CHARLES J. GUITEAU. 53

fanaticism ever concocted by the brain of man. They held the
theory that if a man left the Community he would be damned. I
was in hell anyway, so I went away clandestinely. That old Noyes
and his stinking fanaticism had such an influence over me it was
all I could do to keep from going back. I went to New York, got
acquainted with the Y. M. C. A. and joined Beecher's Church and
came gradually under new influences; my mind was awakened to
the fanaticism of that hole and the scales fell from my eyes.
Noyes claimed that his Community was the beginning of the king-
dom of God upon earth; that he was God's partner and that there
was no way to be saved except through him. He thought he was
greater than .the Lord Jesus Christ. Father used to think it
wicked to go to church and Sunday-school; he thought he was so
holy and good that it was not necessary. When we took a meal
we would gather around a table and he would say: "I confess?
Jesus Christ in food; I thank God for John H. Noyes and the
Oneida Community," making Noyes a substitute for the Lord Jesus
Christ. He would have gone to the Community except for his wife;
my mother would not allow her daughter to go there and that
offended old Noyes and he would not allow my father to come.
Father was terribly cranky about treating diseases; he said he was
in such perfect accord with the Deity, through faith and the Oneida
Community, that diseases were something entirely irrelevant to
health spiritual, and that if a man was sick it was because the
devil had got the start of him; if a member of his family was
sick he would go to the bed to excommunicate the devil by talk,
prayer and so forth. He believed with the Community in common
property; if a man goes there with $10,000, he is not counted any
better than a man with ten cents. I had father's belief as to
healing diseases; when I was in Oneida, if I had a headache I
used to say to the devil, "Go away from me, old devil." The Oneida
Communists say a man is sick because he is possessed of the devil.
I went to New York intending to establish a great theocratic paper.
I consulted with printers and editors and reporters and they dis-
couraged me. Proposed to call it The Theocrat, and one of those
wise newspaper fellows thought that was enough to damage the
paper so I abandoned the idea and went back to the Community,
for I was haunted day and night by the idea that I had missed
salvation. I read law a few months in the office of Mr. Reynolds,
in Milwaukee, and he told me to go and see Charlie Reed, the
District Attorney of Chicago, who made out a certificate that I
was qualified to practice law. Judge Williams signed the paper as
a matter of course. That is the way that I was admitted to prac-
tice. Reed asked three or four questions; I think I answered all
of them, possibly I may have missed one. I went around among
business men and I got business from first-class merchants. I
would go up to a man and show him my card and references (I
always had good references). If a merchant said to me, "Call in
again and I will look up my accounts," I would follow that man
right up until I actually got his business. Then I practised law

54 XIV. AMERICAN STATE TRIALS.

in New York from 1871 to 1875. If I had not been troubled with
the New York Herald and had let theology alone I would have done
well. Made $1,500 there the first year and $2,500 the second year.
Then I had trouble with the Herald and got run down and demoralr
ized. I had gone to a hotel one rainy night and had been arrested
by an impudent detective who took me to the police station. "Was
in the Tombs about thirty days at that time, when Mr. Scoville
went to District Attorney Phelps and got me off. I was five days
in Jefferson Market and thirty days in the Tombs, and was during
that time deserted by all my friends — lawyers, who ought to be
ashamed of themselves for their desertion. Then in 1875 I went
to Chicago and opened a law office and did well. I always could
do well at the law business if I stuck to it. Then I got the idea
of getting hold of the Chicago Inter-Ocean. The stock was very low
at that time. The proprietors had sunk all the money they could
raise. I presumed the paper had cost them about $300,000 and
thought they would be glad to get rid of it for $75,000. I consulted
some of my wealthy friends (or supposed friends), but they thought
it was not advisable to go into the newspaper business then. After
exhausting myself four months I gave it up.

I proposed to make it the great newspaper organ of the West;
to put into it the advertising patronage of the Chicago Tribune,
the Republicanism of Horace Greeley and the enterprise and snap
of James Gordon Bennett. If I had got hold of the money it would
have been feasible. I applied to Mr. Adams, worth $500,000. I told
him I would make him Governor of New York and he said he did
not want it; he did not pan out very well after my interview with
him; did not have any political aspirations. I wanted to get hold
of those fellows who had both aspirations and money; they were
the kind of fellows to help me. I also consulted my old friend,
Charles Reed; he put $25 into it, which he has not got back yet.
I went to theology after that, and that was worse than the news-
paper business. I had an idea of publishing the New York Herald
simultaneously in Chicago. I took steps for securing a building
to carry on the newspaper and to obtain printing presses and tele-
graph despatches. I tried to pick up law business again but found
it hard to get any. Then I went out to Mr. Scovj lie's place in
Wisconsin, worked around the house, studied theology and the
New Testament, read the papers, soaped trees and all that kind
of thing. In October, 1876, I was in Chicago during the Moody
and Sankey meetings; attended prayer meetings and services regu-
larly day and night; was an usher and spoke at prayer meetings
frequently. There was considerable expectation that the Saviour
might soon appear; that set my brain awhirling and I began to
investigate it. I dug out my lecture on the Second Coming. The
idea of that lecture is briefly this: That the second coming of
Christ occurred on the destruction of Jerusalem, in the clouds
directly over Jerusalem, that it was an event in the spiritual world,
and that the destruction of Jerusalem was the outward sign of His
coming; I hold that for all these eighteen centuries the churches

CHARLES J. GUITEAU. 55

have all been in error in supposing the second coming of Christ
to be in the future; that was the result of three or four years
investigation on that subject. (He related his various failures in
delivering his lecture in a dozen cities, the various times that he
was put off railroad cars for not paying his fare, and arrested for
not paying his board bills.) In all I did I was, like St. Paul,
engaged in the service of God, and God was responsible for board
bills. I did not give up lecturing because of my repeated failures,
as I was working for the Lord I would do my duty and let Him
take care of me as He felt disposed; I went into it to serve the
Lord, not to make money; success or failure was nothing to me,
that was the Lord's affair; my duty was to continue with my work;
Paul had no success, because he had new ideas on theology; I kept
thinking of Paul all the time, and how he stuck to his theology.

I went to Boston in 1878 to lecture against Ingersoll;23 was
announced to lecture against "Hell" and drew an immense crowd.
People were willing to pay fifty cents to hear that there was no
hell, but did not like to hear that there was one. I advocated the
existence of hell and heaven, but there were only about a dozen
persons present. Then I went around the streets of Boston and
sold my lecture. I then went to lecture in Worcester, Hartford,
Newark and New Haven but failed, as usual. I got sick and tired
and disgusted with the whole business and got my lectures printed
in Philadelphia and started West, going around among the mer-
chants selling my lecture. I set them thinking that there was a
heaven and a hell and that they were in danger of losing their
souls. I started a law office in Milwaukee but soon got uneasy and
went to St. Louis. I went about thinking that I was making a
mistake, felt haunted with the feeling that I had to preach the
•Gospel as I understood and nobody went to hear me, and I had
no money nor friends and generally had a hard time. In Boston
I got out my book, "Truth, a Companion to the Bible." I. claimed
that I had new light on theology. My views were offensive to
Christian people, as Paul's were to the Jews. I traveled around
the country on my own account, without money er friends, and had
a hard time — about as hard a time as Paul had. I sent the book
to leading ministers and advertised it extensively, and yet it fell
perfectly flat and I did not sell fifty copies.

That brings me down to January, 1880. I had no money but
got on the best way I could, and made up my mind that I would go
into politics. I had great interest in General Grant's nomination.

23iNGEBSOLL, Robert Green (1833-1899). Born, Dresden, N. Y.,
Removed to Peoria, 111., 1857, and began practise of law. Entered
the army and became a Colonel of cavalry in 1862. Atty. Gen.
(111.) 1866. He was one of America's greatest orators but
opposed the Christian religion and his later years were spent on
the lecture platform to which he drew large audiences. Author of
"The Gods and Other Lectures," "Some Mistakes of Moses," "Great
Speeches," etc.

56 XIV. AMERICAN STATE TRIALS.

General Garfield was nominated. Was in Boston but decided I
would go to New York and offer my services to the National Com-
mittee and take an active part in the election of Garfield. I was on
the Stonington when she struck the Narragansett and I thought
my time had come then, but it hadn't.

I had my speech, "Garfield against Hancock," in manuscript. I
wrote it prior to the Chicago convention, supposing that Grant
would be nominated. So I had to write it over to make it fit
Garfield.

I went to several places and advertised the speech, but it did not
draw. Saw General Arthur and other prominent men at the Fifth
Avenue Hotel; they knew me and were glad to see me and all
that. A conference was held on 6th August at the Fifth Avenue
Hotel. I sent my speech to all men connected with the conference,
also to the leading editors of New York. I was only actually
assigned once, some time in August, at a colored meeting. I deliv-
ered part of the speech and gave the newspaper men the rest. I
did not like the crowd. I was in and around the National head-
quarters on Fifth Avenue almost every day and night except
Sunday (they close up on Sunday; they were religious men like
myself) from August to November. I consulted with Jewell and
Arthur and they were friendly, but no matter how much brains a
man had, unless he had reputation they would not choose him;
they treated me well and seemed to think I was a good fellow. I
was, so to speak, on free and easy terms with them. I called on
Garfield, Logan and Arthur and as soon as I mentioned my name
they pricked up their ears and said, "Oh, yes, that is a very good
speecn of yours." After the October elections I wrote to Garfieia
at Mentor and sent him my speech. I called his attention to the
fact that probably I might marry a wealthy lady in New York
some time during the ensuing spring, and that I thought we could
represent the United States at Vienna with dignity and grace. In
January I called his attention to it again. After Mr. Blaine was
appointed Secretary of State I knew I had no chance of getting
the Austrian mission, because it would go to a Blaine man and
I was a Stalwart. I called on General Garfield on the first week
after the inauguration. He was with Morton, who knew me, and
cordially received me. Garfield, of course, recognized me at once.
I marked my name for the Paris Consulship. I wish to say em-
phatically that my getting office or not getting office had nothing
to do with my attempt to remove the President. That was a
political necessity under Divine pressure. To Mr. Blaine in the
State Department I gave my speech. I saw him five or six times
and sent five or six notes on the subject. On my last interview he
said rather abruptly, "Never speak to me again on the subject of
the Paris Consulship." That hurt my feelings in view of Mr.
Blaine's former kindness and pleasant attentions and talk. I said,
"I think I can get the President to remove Mr. Walker and I am
going to see the President about it." "Well," said Mr. Blaine, "I
do not think he will, but if he will" — as much as to say that if

CHARLES J. GUITEATJ. 57

the President wants to remove "Walker I will not interfere with
him. That was the way I understood it. I had no conversation
with Mr. Blaine on the subject after that. I devoted my attention
to the President for several days but never had any personal inter-
view with him. I called frequently and would find fifty or a
hundred persons hanging around, so I used to write little notes
to the President. In one I said, "can I have the Paris Consulship?"
The doorkeeper brought me back an answer from the Private Secre-
tary: "Mr. Guiteau, the President says it will be impossible for
him to see you today." I understood by that, as soon as he got
Walker out of the way gracefully I would be given the office. They
never told me I could not get the office, but so far as the Paris
Consulship or any other office is concerned it had nothing to do
whatever with my inspiration. That was purely a religious neces-
sity done under Divine pressure for the good of the American
people. The political situation kept getting bitterer and bitterer
and I got worried. I wrote several notes to the President in which
I told him he should do something to arrange things and that if
he did not run the Republican party would go to wreck and ruin
and there would be trouble in this country. I saw this nation was
going to wreck.

When Senators Piatt and Conkling resigned there was great
excitement and I felt greatly perplexed and worried. I retired that
evening, greatly depressed over the political situation. Before I
went to sleep the impression came on my mind like a flash that if
the President were out of the way the difficulty would be all solved.
The next morning I had the same impression. I kept reading the
papers and had my mind on the idea of the removal of the Presi-
dent which kept working me and working me and grinding and
oppressing me for about two weeks. All this time I was horrified
and I kept throwing off the idea and did not want to give it any
attention at all; but it kept growing on me until at the end of two
weeks my mind was thoroughly fixed as to the necessity of the
President's removal. As to the Divinity of the inspiration I had
not the slightest doubt from the 1st of June to the present moment.

I kept praying that if it was the Lord's will I should not remove
the President, He should in some way by His providence interrupt
it; that is the way I have always found the Lord. When I feel in
doubt I keep praying to the Deity that He may show me in some
way I am wrong. I never had the slightest shadow of a doubt
on my mind as to the divinity of the act and as to the necessity
of it to the great American people, to unite the factions of the
Republican Party which were then in a most bitter and deplorable
state. If the disruption of the Republican Party was to continue
the Democrats and Rebel element would take entire possession of
the government and precipitate the country into another war. That
was the central idea in the National Republican Committee and on
the stump, and by all the leading Republican papers in the canvass,
that the safety of the Republic depended upon the Republican Party
continuing in control. That the Democratic Party and the Rebel

58 XIV. AMERICAN STATE TRIALS.

element were not yet sufficiently civilized to take possession of the
national finances. I believed that most emphatically. More than
I believe that I am alive. From June 1st to July 2nd I was making
my preparations to remove the President and was having my
inspiration confirmed every day by the way the newspapers were
denouncing the President. I lived in a first-class boarding-house in
Washington; I had good clothes, too, and was in very easy circum-
stances. I spent my time at the Arlington, the Riggs and the
Treasury Department, reading the newspapers, praying about the
matter, praying the Lord if the inspiration was not from Him, or
if there was any mistake about the inspiration, to stop it by His
providence. I am not in the habit of talking about my business
to anyone. I keep my mouth very tight.

I have always believed in special providences; there are four
times in my life when I claim special inspiration — when I went to
the Oneida Community; when I left the Community to establish
a theocratic paper; when I left a good law business in Chicago to
go out lecturing and working for the Lord; when I attempted to
remove the President. When I was lecturing around the country
two or three times I came near meeting serious accidents but the
Lord spared me. Since I have been in jail I have been shot at
three times and missed. Last summer, at one time, everybody
wanted to shoot me or hang me; it didn't disturb my equilibrium
any; the Deity will protect me; He is using these men — soldiers,
jury, counsel and Court — to serve Him and protect me; that is my
theory about Divine protection. The Lord is no fool and when He
has anything to do He uses the best means He can to carry out
His purpose. He is using all these men to serve Him and pro-
tect me.

I had no ill-feeling against the President; considered him as my
political and personal friend. I simply executed what I considered
the Divine will for the good of the American people to unite the
two factions of the Republican Party and thus prevent another war.
My opinion has never changed as, to the necessity of the act. The
people of this country when they know that another war has been
prevented, instead of saying, "Guiteau, the assassin," will some day
say, "G-uiteau, the patriot." I felt greatly relieved when the thing
was over; I felt happy, had not been so happy for weeks as I did
when I was in the cell on the 2d of July, and I thanked God that
it was all over. I have had an idea in my head for twenty years
that I should be President of the United States. I suppose people
think that I have been badly cranked about that. I had it in the
Oneida Community and I went to Boston with the distinct feeling
that I was on the way to the White House, and I shall make it yet.
If I am ever President it will be by the act of God. I shall get
the nomination as Lincoln and Garfield did, and I shall be elected
as they were. I anticipate a decided change of public opinion as
regards me.

The Coubt. Mr. Scoville, confine the witness to the narrative, if
you please.

CHARLES J. GUITEATJ. 59

Guiteau. I don't care now a snap of my fingers about being
President. I don't know tbat I should take it now if I were actually
nominated and elected.

THE CBOSS EXAMINATION BY MR. POETEE.

Guiteau. I am a man of truth, most decidedly I am in dead
earnest in anything I do. I was converted at seventeen and am a
Christian man; have had no bad habits.

The prisoner was then cross-examined in regard to his
business as a lawyer in Chicago and New York, the result of
it all being that he only had some collections cases in Chi-
cago and a similar kind of business in New York, mixed up
with some stray jobs in connection with getting prisoners
out of Ludlow Street Jail, for which jobs he paid a com-
mission to a prisoner in the jail, who was a big talker and
who would recommend him to other prisoners. He admitted
that he was behind in his office rent in New York, and per-
haps in some of his collections, but thought that one thousand
dollars would pay all those debts, together with his board
bills.

When General Logan swore he did not say he would not recom-
mend me, I do not say he did not tell the truth; but he made me
think so; that's the way all these politicians do. Perhaps I said to
officer Scott on leaving the depot, "General Arthur is now Presi-
dent."

Mr. Porter. Who bought the pistol, the Deity or you?

The Prisoner. The Deity furnished the money with which I
bought the pistol. I was agent.

Mr. Porter. I thought it was somebody else who furnished the
money.

The Prisoner. It was the Deity who furnished the money with
which I bought the pistol.

The only inspiration you had was to use the pistol on the Presi-
dent?

The inspiration consisted in trying to remove the President for
the good of the American people and all these details are nothing
to the case.

You did not succeed in executing the Divine will?

I think the doctors finished the work.

The Deity tried and you tried and you both failed, but the doctors
succeeded? A. The Deity confirmed my act by letting the President
down as gently as He did. Q. Do you think it was letting him
down gently to let him suffer that torture, over which you profess

60 XIV. AMERICAN STATE TRIALS.

to feel so much solicitude, during those long months? The whole
matter was in the hands of the Deity, and I do not want to discuss
it any further ; I appreciate the fact of the President's long sickness
as much as any person in the world; but that is a very narrow view
to take of the matter.

Did the Deity give you a commission in writing? No, sir.

Did He give it in an audible tone of voice? He gave it to me by
His pressure on me.

Did you contemplate his removal otherwise than by murder?
I do not like the word "murder." I know you do not like the word
"murder," it is a hard word, but it is there.

The Prisoner. I do not recollect the actual facts in the matter.
If I had shot the President of the United States on my own personal
account no punishment would be too severe or too quick for me,
but acting as the agent of the Deity, that puts an entirely different
construction on the act, and that is what I want to put to the Court
and jury and to the opposing counsel. I say that the removal of the
President was an act of necessity from the situation and for the
good of the American people. That is the idea that I want you to
entertain, and not to settle down on the cold blooded idea of
murder, because I never had the first conception of murder in the
matter. I think the American people may some time consider
themselves under great obligations to me.

Mr. Porter. Were you under great obligation to the Republican
Party? Not that I know of. Did the Republican Party ever give
you any office? I never held any kind of political office in my life.
I had some thought about the Paris Consulship. That is the only
office I ever had the slightest thought about. That was the one
that resulted in the inspiration of murder? No, sir, my getting it
or not getting it never had the slightest effect upon my mind in
attempting to remove the President. If the political necessity had
not existed, the President would not have been removed by me.

Q. In an address to the American people, which you intended
should be found on your person after you had shot him you said,
"I conceived the idea of removing the President four weeks ago."
Was that a lie? I conceived it, but my mind was not fully settled
on it. There is a difference between conceiving a thing and actually
fixing it in your mind. You may conceive the idea of going to
Europe in a month and yet you may not go. That is no point at all.
I was resisting it with all my might and strength and prayer. I
prayed that if wrong the Deity would stop me. Just please take
that in.

Mr. Porter. You say in your letter to the President: "Mr. Blaine
is a wicked man, and you ought to demand his immediate resig-
nation. Otherwise you and the Republican Party will come to
grief."

The Prisoner. Political grief, not physical grief; every intelligent
man will see that I meant political grief. That was a mere flash
which had not taken shape or form in my mind and did not take
shape or form for over two weeks; all that time I was resisting the
idea. I was finding out during those two weeks whether it was

CHARLES J. GUITEAU. 61

God's will or not; at the end of the two weeks I made up
my mind that it was His will, and that it was for the best interests
of the American people. That is the way that I get inspirations. I
wanted to know whether it was the Deity that inspired me; I kept
praying that the Deity should not let me make any mistake about
it, and the Deity has not made any mistake about it.

Mr. Porter. Why did you have doubts about it? Because all my
natural feelings were opposed to the act. You regarded it as mur-
der, then? So-called, yes; it was not murder for me; all my nat-
ural feelings were against it. Were you aware that it was against
human law?

December 1.

Ouiteau. I claim the attention of the audience while I make an
appeal for money to be used in my defense. I have
friends who are interested in the cause of justice and they
can send any sum from five dollars to a thousand to Mr. Scoville.
I do not recall ever striking a man. I have always been a peace
man. Naturally I am cowardly; have kept away from physical
danger, but I am morally brave and determined, especially when I
am sure the Deity is back of me. He desired me to remove the
President for the good of the American people.

Mr. Porter. Did the Deity use the word "remove"? A. It is the
Way it came to my mind; if two men quarrel and one kills the other
and there is malice, this is murder. I say the doctors killed the
President, not I; they were guilty of murder.

Q. Were Mason and Jones guilty of a murderous assault? Most
decidedly, because they made an assault on a citizen of the Republic.
They should be punished without they can show that they acted as
agents of the Deity; if they were executing the Divine will they
should be set free. I am not afraid of you, Judge Porter. I know
bigger men than you; I have seen you shake your finger before in
New York; I am not afraid of you.

Mr. Porter. Do you believe in the Ten Commandments? Yes.

Q. Have you higher evidence that the Supreme Ruler of the
universe said to you "Thou shalt kill" than you have that He said
"Thou shalt not kill"? There was no more murder in the matter
than it was to kill a man during the war. It is altogether too sacred
a matter to make light of and I will not have it. Now you know my
position just as well as if I had been talking six weeks about it.

Mr. Porter. When you told the police officer you had shot the
President had you forgotten that the Deity was the one who had
shot him and that He commanded you to do it? I do not want to
discuss that matter with you any further; I want you to know that
when I speak of myself I always associate myself with the Deity;
there it no use splitting hairs on that point.

Questioned with regard to the different boarding-houses at which
he had lived in Washington, he said: "I decline to go into this
boarding-house business. It has no bearing on this case. I suppose
I owe $150 in Washington to these genteel ladies, and some time
or other I expect to pay them. When I have money I pay my debts,

62 XIV- AMERICAN STATE TRIALS.

and when I have not I can't pay them; that's all there is in it.
(Pressed as to how he proposed to raise the funds which he said
he was expecting to receive.) I intended to borrow it from some
of my friends. I'll tell you, Judge, how I borrow money. It may
be of service to you when you want to borrow for yourself. I don't
lie or sneak, but go right up to a man and ask him for what I
want, and if he has got it, perhaps, on the impulse of the moment,
he will give it to me; if not, that's all there is to it.

Mr. Porter. After you bought the revolver, being unused to fire-
arms, did you practice with it? I went down and fired it off over
the river just to get used to the outward act of handling it. I
knew no more about it than a baby. When I went to buy it I
looked at it and it kinder scared me; the man in the store loaded it.

When did you begin watching the President's movements? About
the time he and Mrs. Garfield went to Long Branch. I did
not go near the White House grounds. I used to sit in the park
opposite. At any time I would have executed the Divine will from
the middle of June until the time I actually did shoot him. The
Deity uses certain men to serve Him; He is using this honorable
Court and this jury and these police and these troops to serve Him
and protect me. I leave my justification to God and the American
people — principally to God and second to the American people.

Mr. Porter. Suppose he had appointed Mr. Conkling as Secretary
of State, would you have killed him? The Republican Party would
not have got in any such snarl if Conkling had been Secretary of
State. Q. Did you not lie to Mr. Blaine? I simply made the sug-
gestion that if he assisted me in the Paris Consulship I should
feel bound at the National Convention to assist him. That is the
way politicians get on — you tickle me, I tickle you. Q. Did you
write to President Garfield: "Until Saturday I supposed Mr. Blaine
was my friend in the matter of the Paris Consulship"? Yes, and
that is the truth about it. I hit him square there and that is the
reason why Blaine went back on me; because I was a Grant man
and he thought he would put a Blaine man in the Paris Consulship.
What possible ill-will could I have had against Garfield? Blaine
was the man to have shot according to your theory; my not getting
the office had nothing to do with it whatever. It shows how absurd
and nonsensicle your theory is. General Garfield went and sold
himself soul and body to Mr. Blaine. He did not appreciate the
sentiment and kindness of those letters and threw himself into
Blaine's hands and allowed Blaine to use the Presidency to destroy
Conkling and Grant.

Mr. Porter. Did you not say in your letters "life is a fleeting
dream, and it matters little when one goes"? Those are my senti-
ments. Does it matter much to you when you go? I have got no
great fear of death; you are liable to die in five minutes, and so
is everyone in this Court House. The only question is whether you
are ready to die. Did you say in your letter: "I presume the
President was a Christian, and he will be happier in paradise than
here"? I did, and I am sure the President is a great deal happier

CHARLES J. GUITEAU. 63

at this very moment than any man on earth. You have no doubt
that when you killed him he went direct to paradise? I believed
him to be a good Christian man. And you believe that the Supreme
Being who holds the gates of life and death wanted to send him to
paradise for breaking the unity of the Republican Party, and for
ingratitude to General Grant and Senator Conkling? His Chris-
tianity had nothing to do with his political character. His political
record was very poor, but his Christian character was good because
he was a good man as far as I know. The Deity seemed to be on
my side and everybody else against me. Some of these bitter crank
papers have been toning down wonderfully for the last three or
four weeks. They want conversion. They want new ideas about
the President's removal. Nothing but a change of heart will satisfy
their diabolical thirst for blood. It is not likely that the Deity will
gratify them in their thirst for blood. I suppose there were a
thousand men in the Republican Party who would have shot General
Garfield if they had the chance and had got the nerve, and the
brains and the opportunity to do the work.

Mr. Porter. Did it occur to you that there was a commandment,
"Thou shalt not kill"? The Divine authority overcame the written
law. Was there any higher Divine law than that spoken on Sinai?
Indeed there was.

Q. Did you walk back and forth in the depot watching for him?
Yes, I was working myself up, for I knew the hour had come.
Was it necessary to do that to obey God? It was all I could
possibly do to do the act any way, and I had to work myself up
to do it. I had to obey the God Almighty if I died the next
second.

Mr. Porter. You wrote that you would have killed the President
on June 18th if it had not been that Mrs'. Garfield was with him.
My heart would not allow me to remove him in the presence of
Mrs. Garfield, she was a sick lady and the shock might have killed
her. That was my reason for not doing it. I only had authority
to remove the President. I felt very sorry for her; remarkably
sorry for his children and for everybody; I was grieved that it
was necessary to save the Republic from another war and it has
saved the country from another war. What was the necessity
of requesting General Sherman to send troops to the jail to pro-
tect you for having obeyed the Deity? I would have been shot
and hung a hundred times if it had not been for the troops in
the jail.

Mr. Porter. You wrote that Garfield's nomination, election and
removal were acts of God. Who nominated him? The Chicago
Convention. Was that inspired? I thought that Grant or Blaine
would be nominated and when Garfield was nominated on the
thirty-sixth ballot it was an act of God. Was the Chicago Conven-
tion inspired? In a certain sense it was. In the same sense that
you were? No, sir; I had a positive and direct inspiration.

64 XIV. AMERICAN STATE TRIALS.

December 2.

Mr. Porter. Was it one of your purposes in killing the President
to create a demand for your book? Yes, to preach the Gospel as
set forth in my book. You regard your book as the Gospel? It is
a collateral Gospel; the book is the Bible brought down to the
present day; it comes from the Deity. I express myself sharp,
pointed, sententious. If you would like to see a specimen of that
kind of style look through my book.

I take my chance before this Court and the jury on the fact
that the Deity inspired the act. I am not a fool, and the Deity
never employed a fool to do His work. He put it into my brain
and heart, and left me to work it out in my own way. I was the
predestined man from the foundation of the world to do this act,
and I had to do it. Napoleon thought he was a man of destiny
though he had different work from me. I am a man of destiny
as much as the Saviour, or Paul, or Martin Luther or any of those
religious men.

Mr. Porter. Do you believe the devil tempts men? He tempts
them to do evil and that is the reason when pressed to do a thing
I first question whether it is the devil or the Deity. If the political
situation had not existed then I should have said that it was the
inspiration of the devil. But the political situation required the
removal of the President for the good of the American people and
that is the way I knew it was the Deity and not the devil. And
it was in view of the political situation that you made up your
mind to murder? Don't use that word murder; you are entirely
too free with that word, Mr. Porter. Are you not on trial for
murder? So it is said; can't you use the proper word, removed?
Your defense is that you are legally insane and not in fact insane,
is it? The defense is that it is the Deity's act and not mine. Are
you insane? A good many people think I am badly insane. The
Oneida people thought so, my father thought so, and my relatives
thought so and still think so. I am not an expert, let the experts
and the jury decide whether I am insane. Did you expect at the
time you shot the President to be tried for it? I had no expec-
tation about it. My only thought was to execute the Divine will
and let Him take care of me. I would not have been deterred from
the act if I had known I should be shot in five minutes.

Mr. Porter. What did you do on the day you killed him? I
slept the previous night at the Riggs House; I rose early and sat
in Lafayette Park some time before breakfast; after breakfast I
went to my room and got my revolver. A little before nine I went
to the depot and had my boots blacked. Blaine and the President
drove up in Blaine's carriage which showed how much the President
was under Blaine's influence; Blaine was blowing and blowing and
the President was listening; they were on the most intimate rela-
tions; they walked into the depot and passed within a few feet
of me. I drew my weapon and fired twice and hit him once.

Mr. Porter. And from that hour to this you have never felt

CHARLES J. GUITEAU.

65

regret or remorse? I regret giving pain or trouble to anyone, but
I have no doubt as to the necessity of the act or the divinity of
the act. Of course, I feel remorse so far as my personal feelings
are concerned; I feel remorse as much as any man and regret the
necessity of the act. My duty to the Lord and the American people
overcame my personal feelings.

December S.

Dr. Alexander McNeil (Colum-
bus, O.). Saw prisoner several
years ago when he was trying
to lecture and sell his book.
Said it was one of the finest pro-
ductions that ever eminated
from an inspired pen. I told my
friends I thought he was a luna-
tic. He seemed to be badly bal-
anced.

Emory A. Storrs.2* Saw
prisoner a number of times in
different cities; told me once he
was going to have the Austrian
mission; that he was solid with
Blaine; am not an expert on in-
sanity. Can express no opinion
as to his sanity. My impression
was that he had an illy-balanced
judgment and an illy-balanced
mind and did not have what the
average man would call good
common sense.

Cross-examined. Have never
seen anything in Guiteau which
led me to believe that he could
not distinguish between right
and wrong. I said to Mr. Sco-
ville in Chicago that I thought
Guiteau was "off his nut."

Edward A. Daniels. Met the

prisoner at the Y. M. C. A. and
thought his conversation and
movements peculiar.

David Davis.25 I am not con-
nected with either of the politi-
cal parties of the country. The
Republican Party has not been
destroyed and yet there have
been breaches in it. There is
only one way in which the Re-
publican Party can ever be de-
stroyed, that is by the disrup-
tion of the Democratic Party. I
do not think that the success of
any political party would im-
peril the Republic. The success
of the Democratic Party would
not tend in any degree to bring
on another civil war. The
southern people are the last
people in the world to desire to
go into any war. If there be
any war it will come from some-
where else than the south. I
never saw the prisoner before
and know nothing of the matter.

The Prisoner. I want these
persons subpoenaed, to show the
political condition of the coun-
try last spring: President Ar-
thur, General Grant, ex-Senators
Conkling and Piatt, Jewell, Rob-

24Storrs, Emery Alexander (1835-1885). Born, Hinsdale, N. Y.
Studied law at Buffalo and admitted to bar there 1885. Removed
to Chicago 1859; became a leader of the bar there, a successful
advocate and a political orator of national reputation. Delegate at
large to the Republican National Conventions of 1868, 1872 and 1880.

25 Davis, David (1815-1886). Born, Cecil Co., Md. Associate
Justice Supreme Court of the United States 1862-1877; U. S. Senator
(Illinois) 1877-1883; Vice-President 1881-1883. Died at Blooming-
ton, 111.

66

XIV. AMERICAN STATE TRIALS.

ertson and Dorsey, and Senators
Jones and Logan; Mr. Reid of
The Tribune, Mr. Jones of The
Times, Mr. Dana of The Sun,
and Mr. Hurlburt of The World,
Mr. Gorham of The Washington
Republican, Mr. Hutchins of The
Washington Post, and Mr. Nixon
of The Chicago Inter-Ocean. I
presume your honor will order
this.

December 5.
The Prisoner. Before the ex-
perts begin I want to submit the
point upon which I wish them

to pass. When a man claims
that he is compelled to do an il-
legal act from a power beyond
him which he cannot control,
where his moral agency is dom-
inated, I want these experts to
say whether that is insanity or
sanity.

James P. Kiernan. Am a prac-
ticing physician; was managing
eidtor of the Chicago Medical
Review and lectured on mental
diseases in the Chicago Medical
College; have made a study of
mental diseases since 1874.

Mr. Scoville submitted the following hypothetical question: As-
suming it to be a fact that there was a strong hereditary taint of
insanity in the blood of the prisoner at the bar; also that at about
the age of thirty-five his own mind was so much deranged that he
was a fit subject to be sent to an insane asylum; also that at
different times after that date during the next succeeding five
years, he manifested such decided symptoms of insanity, without
simulation, that many different persons conversing with him and
observing his conduct believed him to be insane; also that in or
about the month of June, 1881, at or about the expiration of said
term of five years, he became demented by the idea that he was
inspired of God to remove by death the President of the United
States; also that he acted on what he believed to be such inspi-
ration, and as he believed to be in accordance with the Divine will
in the preparation for and in the accomplishment of such a pur-
pose; also that he committed the act of shooting the President
under what he believed to be a Divine command which he was not
at liberty to disobey and which belief made out a conviction which
controlled his conscience and overpowered his will as to that act
so that he could not resist the mental pressure upon him; also that
immediately after the shooting he appeared calm and as if relieved
by the performance of a great duty; also that there was no other
adequate motive for the act than the conviction that he was exe-
cuting the Divine will for the good of his country, was he sane or
insane at the time he shot the President?

Dr. Kiernan. I should say
that the prisoner was insane.
My opinion is based upon the
strong hereditary tendency,
upon the impairment of the
prisoner's judgment and his
moral excitement and his strong

conviction that he had a mis-
sion from God to fulfill in the
removal of the President. Do
not think that a man believing
himself commissioned by God
would bear himself very differ-
ently from a sane man. He

CHARLES J. GUITEAU.

67

would be governed in a general
way by his own specific charac-
teristics.

The Prisoner. The Lord in-
jects an inspiration into my
brain and leaves me to work it
out in my own way. That is the
way I get my inspiration. God
does not employ fools to do His
work. He gets the best brains
he can find.

Mr. Davidge. Suppose a man
told you that he had an inspi-
ration to slay a ruler and you
watched his conduct and be-
havior and it turned out to be
that of a vulgar criminal all the
way through, what would you
think of his statement that he
had a Divine commission?

Dr. Kiernan. If I assume the
condition of things you state, I
answer I would not have given
any weight to his declaration;
progressive paresis produces
physical changes.

The Prisoner. What is the
English of that, doctor? We are
all common folks here and can-
not understand that scientific
language.

Dr. Kiernan. This is a form
of insanity attended by very
strongly marked physical and
mental symptoms. A man who
was penurious would suddenly
become extravagant and spend
his money lavishly. It is also
attended by a strong tendency
to believe himself immensely
strong, at the same time his
walk would become tremulous
and he would have frequent dis-
turbance of gait. An inequality
in the two sides of the head is
an evidence of hereditary in-
sanity.

Ouiteau. That hits my case
exactly. One side of my head is

larger than the other. Doctors
examined me the other night.

Mr. Davidge. What is the pro-
portion of insane people to sane
people in the world?

Witness. Probably out of
every twenty-five persons in or-
dinary life, five are insane, and
sooner or later they become in-
mates of insane asylums. If I
talk with twenty-five ordinary
business men I would probably
find five of them insane.

Mr. Davidge. Gentlemen of
the jury, at least two of you are
doomed.

Prisoner. That may take you,
Davidge.

Dr. Kiernan. There are a
large number of men who, while
not positively insane, are defi-
cient in judgment and cannot be
classed with properly well bal-
anced men. There are three
times as many persons outside
of asylums as there are inside
who are proper subjects for in-
sane asylums.

Hichard J. Hinton (Washing-
ton). Saw prisoner frequently
at the rooms of the Republican
Committee; have also read his
speech of Garfield vs. Hancock;
thought it ill-jointed and utterly
inconsequential. He was the
laughing stock when he was not
a nuisance to everybody.

Ouiteau. I recall you as a
nuisance about headquarters.
Scoville, if you put any more of
these cranky fellows on the
stand I will blow you up again.
You had no business to call Da-
vid Davis. That was a great
piece of impudence. I don't
take any stock in this kind of
business.

Dr. Charles H. Nichols. Am
superintendent of the Blooming-
dale Asylum; been connected

68 XIV. AMERICAN STATE TRIALS.

with insane asylums since 1844; the Insane at Washington, D. C;
have been connected with the Dr. James H. McBride, of the In-
New York State Lunatic Asylum sane Asylum at Milwaukee; Dr.
at Utica, with the Government Walter Channing, of Brookline,
Hospital for the Insane for the Massachusetts; and Dr. Theo-
District of Columbia. Taking dore W. Fisher, of Boston, said
that hypothetical case to be true, that on the assumption that the
the person described was insane. facts in the hypothetical ques-

Guiteau. The witness has tion were true, they considered
struck a very important idea, to- the prisoner insane,
wit, that the Lord interjected The Prisoner. My memory is
the idea into my brain and then remarkably good. There is no
let me work it out my own way. simulation about me. I go
That is the way the Lord does. straight. That is all there is in
He doesn't employ fools to do this case. I rest my entire case
his work; I am sure of that; he upon the idea that I was in-
sets the best brains he can find. spired by the Deity and I won't

Dr. Charles Folsom, of Bos- allow any other defense to go in.
ton; Dr. Samuel Worcester, of i mean by inspiration the inter-
Sal em, Massachusetts; Dr. Wil- jection of Divine power into my
Ham W. Golding, Superintendent mind. That is what I mean by
of the Government Hospital for it.

December 6.
The Prisoner. I want to say here that I want to have here as
witnesses General Grant, Senators Conkling and Piatt, Governor
Jewell and those other men who were doing politics last spring.
I want to show by General Grant the personal feeling that he had
towards President Garfield last spring, when he wrote his letter to
Senator Jones, showing a very bitter spirit towards the President.
I want to show that neither Grant nor Conkling nor Jewell would
go to the White House; I was on friendly relations with these
men. The inspiration which came to me for President Garfield's
removal arose from the political situation, and I want to keep
thumping that into the ears of the civilized world; it is very
important for me to have these men examined in this defense. Mr.
Scoville has altogether too narrow a view of this matter. He is a
good man, but he is no politician, and he is no criminal lawyer ,-
he has done remarkably well considering, but he is not an expert.
Mr. Storrs, of Chicago, one of the most brilliant members of the
American Bar, says that I have got the true theory of this defense.
He does not take any stock in Scoville's theory that I am a fool.
He says also, that I am the ablest lawyer in this case, and I shall
not quarrel with him for his opinion. I should be highly pleased
if President Arthur would recognize Mr. Storrs' services and make
him Attorney General. He is a man of brains and a true-blooded
Republican and would do honor to the nation in that position. I
make one suggestion publicly to President Arthur. I have not
asked him for any favors, and probably shall not; but I feel au-
thorized to make this sugestion about Mr. Storrs.

CHARLES J. GUITEAU.

69

Charles B. FarxceW$ (Chi-
cago, 111.). Prisoner came to
my office about seven years ago
and showed me a lot of "writing
which he said were editorials,
and wanted to borrow $200,000
to start a newspaper, promising
in return to make me President
of the United States.

Guiteau. You told me you
would put in $10,000, but you
never put in a cent.

Mr. Farwell. Of course I re-
fused, as I did last March when
he asked me to sign a recom-
mendation for a Foreign mis-
sion. I did not think him ex-
actly sane, but thought he knew
the difference between right and
wrong.

George C. Gorham. Am an
editor. Have read the speech,
Garfield vs. Hancock. Think it
a pretty good statement of the
situation as viewed by a good
many people.

Mr. Scoville. I have issued a
subpoena for President Ar-
thur^? by whom I expect to
prove that Guiteau has written
him letters in a familiar style
as one equal or friend to anoth-
er, when he had no sane grounds
on which to do so.

Guiteau. You had never any-
thing to do with those high-
toned men. You do not know

how to act with them. You had
been always away down in the
dirt. You have got no political
record. You ought to have
stayed in Chicago and not come
into this case. You have no ca-
pacity for this kind of business.
What do you know about it?.
You will not sit down on me
any more.

Mr. Porter. The proper way
would be to send him interroga-
tories. The President should
not be summoned here.

The Court. Prepare your
questions.

Guiteau. I am very sorry that
I could not get Storrs into the
case. Storrs is a politician and
one of the most brilliant men at
the American Bar. Scoville is
doing well enough on his the-
ory, but his theory is too narrow
on this kind of business. That
is all the trouble with him. It
requires a first-class artist to do
this fine work.

Mr. Scoville began to read to
the jury the prisoner's book,
Truth.

Guiteau. Do not read it like
a schoolboy, read it with spirit.
Let me read it. (The Court con-
sented and the prisoner read it
until the adjournment — several
hours.)

ae Farwell, Charles B. (1823-1903). Born, Painted Post, N. Y.
Removed to Chicago 1844; County Clerk 1853-1861; became member
of firm of John V. Farwell and Co. 1864; Member of Congress
1870-1882; United States Senator 1887-1891.

27Arthtjr, Chester Alan (1830-1886). Born, Fairfield, Vt.
Grad. Amer. Coll. 1848. Admitted bar and practised in New York
City; Army Quartermaster-General (N. Y.) 1862; Collector of Cus-
toms (N. Y.) 1871-1878; Vice-President U. S. 1880; President 1881-
1885. Died in New York City.

70

XIV. AMERICAN STATE TRIALS.

In REBUTTAL.

December 7.

General W. T. Sherman. On
receipt of prisoner's letter (see
ante p. 31), I called out four
companies of soldiers, fearing
that the shooting was part of a
general conspiracy; on investi-
gation I was convinced it was
the act of one man alone.

Edicard P. Barton, Smith D.
Atkins, A. T. Greene, Gardner
W. Tandy, Benjamin T. Buck-
ley, J. S. Cochran, George W.
Oiler, Anson A. Badcock, David
H. Sutherland, Horace Tarbox
and W. S. Caldwell, citizens of
Freeport, 111., who knew the Gui-
teau family there, testified that
the father was a clear-headed
business man, public spirited
and that they never observed in
him any sign of insanity, or in
any other of the family.

Guiteau. All these witnesses,
it will be observed, knew about
my father's business affairs.
They know nothing about his
social and religious character. I
am sorry my half-sister Flora's
name was mentioned in this
case. I know she is a high-toned
lady and stands well in Free-
port. I send her my greeting.
I am very glad that General Ar-
thur has rapped those miserable
Mormons, and I hope he will do
it again. I want him to make
it a specialty of his administra-
tion to destroy Mormonism. The
Message shows that he is a very
fine man in his administration.
I expect he will give us the best
administration we have ever
had. The Message has the true
ring to it.

December 8.

George C. Maynard, Frank
Bartlett and Julia Wilson, who

were acquainted with the Gui-
teau family, testified to their ap-
parent sanity.

Florence L. Bartlett. Saw~the
dog thrown down the stairs by
the prisoner. Mrs. Scoville re-
proached him for it.

Guiteau. We have had enough
of this dog business. I have
just had my attention called to
a very impudent discourse by
my former wife. It is full of
lies and I repudiate her. I do
not know anything about the
woman and have not for years.

The Court. That matter is
not before the court now.

The Prisoner. I know it is
not, but it is so aggravating a
statement that it riles me. If
she comes onto this stand I will
make it pretty hot for her; I
tell her that to her face. I
haven't known anything about
her for five or six years and I
should say she must have fallen
from grace very badly. If she
comes here I shall show her up.
It is such an outrageous, lying
discourse that I cannot contain
myself. It is a lie from begin-
ning to end. When we lived to-
gether and I had her we were in
first-class boarding houses and
hotels and had plenty of good
clothes and that sort of thing.

Howard C. Dunham. Am Sec-
retary of the Peace Society at
Boston. In 1879 prisoner had
desk room in my office. He said
theology did not pay and that
he was after money. Had no
suspicion he was insane. Last
November J. Wilson Guiteau
told me there was not a case of
insanity in the family.

Guiteau. He is no expert. He
thinks it would be a disgrace to

CHARLES J. GUITEAU.

71

the family. Two of my cousins
are in lunatic asylums. Prob-
ably I will be there soon.

John Palmer. Was proprietor
of a hotel at Saratoga Springs.
Guiteau spent a week at my

house in July, 1880,. and left
without paying his bill.

(hiiteau. I owe him $10 for a
board bill. It costs the govern-
ment $100 to prove that. Why
not ask me and save the money?

Mr. Scoville read the answers of President Arthur to the inter-
rogatories. The President replied that he knew prisoner; that he
had seen him possibly twenty times. To the question as to whether
he had ever conversed with him: "Never, except to return the
ordinary salutations of the day and once or twice in answer to his
request to be employed in the campaign as a speaker by the Repub-
lican State Committee, of which I was chairman." To the question
what political services the prisoner had rendered to the Republican
Party during the last Presidential campaign: "None that I
know of." To the question whether there was anything in the
prisoner's relations to himself or to General Grant or to Senator
Conkling or any other leader of the Republican Party, socially or
politically, to furnish him with any ground for supposing that he
would receive any political preferment: "No." To the question
"Did you ever give him any reason to think he could have any
political or personal influence with you?" "I never did."

Guiteau. That is a matter of opinion. That is all there is to it.

Rev. R. 8. MacArthur. Am
pastor of the Calvary Baptist
Church of New York. In July,
1872, prisoner introduced him-
self and his wife to me, present-
ing a letter of dismission from
the church of Chicago. He
stated that in Chicago he had
had a lucrative practice of law,
but owing to the disasters fol-
lowing the fire his practice had
entirely gone and he had come
to New York to start life afresh.
He was gentlemanly and ele-
gantly dressed; his deportment
not unprepossessing. I intro-
duced him and his wife to men
of prominence in society and in
church relations.

The Prisoner. Dr. MacArthur
was a very fine gentleman. I
owe him ninety-five dollars and
I am sorry I cannot pay him
now. He is an orator. You can
see that from the way he talks.

Dr. MacArthur. His wife
came to me later with a letter
from her husband stating that
he was in great distress for
money. He would soon repay
me from a large fee. He en-
closed a promissory note to me
for $100. I gave the money,
which he has never repaid. He
attended our meetings and par-
ticipated in the prayers and re-
marks. There was nothing no-
ticeable either of superior excel-
lence or peculiar unfitness in his
remarks. He told me that he
expected an office for his po-
litical work — Minister to Chile.

The Prisoner. Nothing of
that kind; may have mentioned
the Swiss Mission; I had some
idea that if Horace Greeley were
elected he would let me have the
Swiss mission. It is only a small
affair anyway — only five thou-
sand dollars a year.

72

XIV. AMERICAN STATE TRIALS.

Dr. MacArthur. In the Spring
of 1875 he was thrown into Jef-
ferson Market jail because of
some difficulty with a hotel.
From the jail he wrote me that
I was the only one to whom he
could apply and that he was ab-
solutely helpless. Although be-
sought very piteously by him to
intercede, I told him I feared he
was a bad man and that he must
allow the law to take its course.
It came to our knowledge that
he had been guilty of gross im-
morality, and in April, 1875, he
was summoned to appear before
the Committee on the charge of
gross immorality, viz: that he
took money which his wife had
earned by working in a hotel in
the country and spent it in im-
proper relations with other wo-
men, and that he had been
guilty by frequent acts of viola-
tion of his marriage vows. He
confessed to me their truth. He
was expelled from the church.
The Committee were above any-
thing like unfairness towards
any person.

Guiteau. The men on that
committee said that they had
been in the same boat them-
selves and for that reason they
felt sympathetic. They thought
that if a man had been unfortu-
nately married he had a right to
get out of it.

The District Attorney. We
present this testimony because
we want to show that what the

defense calls insanity is nothing
more than devilish depravity. It
never occurred to me for a mo-
ment that he was other than
sane.

Dr. MacArthur. There was no
evidence of repentance for the
past.

Prisoner. You thought I was
totally depraved because I owed
yon ninety-five dollars and could
not pay you. Pretty good theol-
ogy, wasn't it, doctor? You are
a good fellow. You drew the
money out of your salary. I am
sorry I can't pay the money, but
I gave you my note, payable on
demand. Corkhill, if your rec-
ord was dug up, Colonel, it,
would stink worse than mine. I
understand you are booked for
removal. You had better go
slow. The President is only
waiting to get this thing off his
mind before you get your ticket-
of-leave.

December 9.

George W. Plummer (Chica-
go), Granville P. Hawes (N.
Y.), Stephen English (N. Y.),
Warren C. Brown (N. Y.),
Thomas Darlington (N. Y.),
Charles H. Welhe (N. Y.), all of
whom had met the prisoner in
former years, testified that they
had never considered him in-
sane. The last said he had been
empoyed to collect money from
the prisoner which he owed cli-
ents.

The Prisoner. Judge Hawes belongs to the marine court of New
York. I was in an office with him a year and a half and I owe
him $75 office rent. I want to say here that two or three years
ago I lost a great lot of receipts, hotel bills, boarding-house bills
and office rent receipts when I was traveling about on theology,
showing that I had paid hundreds and hundreds. of dollars of debts.
I always paid my debts when I got the money. If I didn't get the
money I didn't pay. There was no money in theology. Mr. English

CHARLES J. GUITEAU.

73

was in Ludlow Street jail in 1873 and I got him out and charged
him $300. He afterwards pretended there was some trouble about
it and had me arrested for that $300. That is about all he knows
about me. I worked day and night for two or three weeks to get
him out. He went and committed actual perjury and got me
arrested there in the court of common pleas of New York and if
I had had the disposition I could have sent him to Sing Sing for
three or four years for perjury. I thought of doing it at the time.
That is the kind of man English is.

Benjamin Harrison.^ After
the inauguration prisoner called
to see me and sent several cop-
ies of his speech; applied to me
for assistance in connection with
his application for office. Told
him I could not interfere in his
behalf. He said as soon as the
political dead-lock was broken
his name would be sent to the
Senate. Saw nothing in his con-
duct or conversation that raised
in my mind any question of his
sanity.

Isaac F. Lloyd. As secretary
of a life insurance company pre-
sented applications for insur-
ance, four from John W. Gui-
teau, two from prisoner and one
from prisoner's father. They
contained negative answers to
the question whether there was
insanity in the family.

Walter R. Gillette (N. Y.).
Prisoner came to my office in
Fall of 1880, said he was a law-
yer; he had some leisure time
which he proposed to devote to
the soliciting of life insurance.
Saw nothing in him to indicate
him a man of unsound mind.

Charles H. Raymond (N. Y.).
In winter of 1880 he brought in
six applications and borrowed
thirty dollars from me.

D. McLean Shaw (N. Y.).
Prisoner rented an office room
from me in 1872. Said he had
been practicing law in Chicago
where he had lost his library
and everything in the fire. That
he was a member of the church
and had letters of commenda-
tion. Did not approve of the
way he did business and asked
him to get an office elsewhere.
He burnished up an oriode
watch, saying he was going to
fix up somebody with it. He
went out and came back shortly
afterwards in great glee, saying
he had struck a Jew for twenty*
five dollars on that watch. He
said he went into a pawnbrok-
er's, handed the man his busi-
ness card, said he was a little
short of money and wanted
some money on his watch; asked
how much, and he said, "Well,
twenty-five dollars will do me
today." The Jew took the
watch and gave him the money.
I said, "I think you would be
ashamed to do that. He has got
your card and will come back on
you." "Oh, no," said prisoner,
"I took my card back again."

The Prisoner. The fact is the
watch was worth fifty dollars, so
you are short in your story,
Shaw.

2s Harrison, Benjamin (1833-1901). Born, North Bend, O. A
noted lawyer and a general in the Civil War; United States Senator
(Ind.) 1881-1887; President of the United States 1888-1893.

74

XIV. AMERICAN. STATE TRIALS.

Mr. Shaw. He said he was go-
ing to get some money from Dr.
MacArthur. I told him he ought
not to borrow money from his
friends unless me was going to
pay it back. "Well," said he, "I
must have the money anyway."

The Prisoner. I owed Shaw
fifty dollars for office rent and
he could not see any good in me
after that. He is a man who
likes money too well.

Mr. Shaw. From the first I
knew he was vain and egotisti-
cal and had a great desire for
publicity. He said that he was
bound to be notorious before he
died; if he could not get it for
good he would get it for evil. I
asked him what he meant. He
said he would shoot some of our
big men, that he would imitate
Wilkes Booth. Said I, "And get
hanged for it." "Well," said he,
"that is an after consideration."

The Prisoner. I say you are

a liar, a low, dirty liar. I never
had any conversation of that
kind with you in my life and
you know it. You pretend to be
a church member, too.

Mr. Shaw. I am sorry to have
to say it. I did not come vol-
untarily to say it.

The Prisoner. You are a low,
stinking liar. I will have no
conversation with you. I will
publish you all over the world:
When you go back to New York
your friends will know about it.

Mr. Shaw. This was in my
office. I cannot fix the date.

The Prisoner. No, of course
you cannot fix the date, you mis-
erable, lying whelp. I never said
nor thought so. He is no law-
yer; he is a pettifogger.

Mr. Shaw. I never had any
doubt of his sanity.

The Prisoner. You are a low,
dirty lived puppy to come here
and lie about me in that way.

THE DEFENSE AGAIN.

December 12.
Dr. E. C. Spitzka (New York
City). Have made a specialty
of nervous and mental diseases;
received the International prize
in 1878 for an essay on insanity.
Examined prisoner yesterday at
the jail; had never seen him be-
fore; found him insane; exam-
ined the background of his eye
by an opthalmoscope; the pulse
with an instrument which mag-
nifies the pulsations called the
sysgimograph ; found both nor-
mal and healthy. His marked
feature is a tendency to delu-
sive opinions, and to the crea-
tion of morbid and fantastical
projects; a marked element of
imbecility of judgment, while I

had no other evidence than the
expression of his face and eyes
for this, I have no doubt that
he is a moral imbecile, or rather
a moral monstrosity. He had an
insane manner as well marked
as I ever saw it in an asylum.

An acute retentive memory is
consistent with some forms of
insanity and inconsistent with
others. Including in the hypo-
thetical question, I should say he
had been of a morbid mental
state throughout his life and he
was probably insane at the
time you mention. A person who
has an insane delusion is insane
if it is a single delusion. I went
to the cell behind other visitors
so as to take him unawares,

CHARLES J. GUITEAU.

75

asked him why he had not re-
moved Mr. Blaine instead of the
President; he said, "Because
that would not have done any
good. There would have been
just such another man as Blaine
to step into his shoes and Ar-
thur would not have been Presi-
dent." Then he became wildly
excited and yelled forth about
the way the prosecution was at-
tacking him, bringing up lying
witnesses; it was difficult to re-
strain him. Asked him why he
interrupted the Court if God had
got the thing in His hands. He
made a quotation from Scripture
about Jesus Christ sending the
lying to utter damnation, and
said: "May I not do the same
thing? Am I not in the posi-
tion of Jesus Christ? Am I not
a martyr? Have I not sacrificed
myself for the American peo-
ple?" Found his physical con-
dition good, his memory good,
and his legal attainments those
of a third class shyster. He dis-
played a certain amount of
judgment, parried questions
which he did not want to an-
swer, and went to subjects which
developed something flattering
to his self-love.

If you ask me whether he
knew the full consequences of
his act, I should say without
any hesitation that he has al-
ways known the ordinary legal
consequences of criminal acts,
but that is not my interpretation
of insanity; it is outside the
idea of right and wrong.

I found in him a tendency to-
ward insane delusions and to

the formation of morbid pro-
jects. He told me as positively
and sincerely as a man could,
that when he got out of jail
(feeling firmly convinced that
American people would not al-
low him to die a disgraceful
death after what he had done
for them), he would go to Eu-
rope for three or four months
to keep out of the way, and then
come back and lecture, and that
he expected to make a great suc-
cess.

Most murders are not com-
mitted from morbid projects, but
from sane motives, criminal mo-
tives.

Guiteau. With the exception
of committing adultery to get
rid of my wife and of owing
some debts, I have always been
a Christian man. I am not
afraid to go to the gallows if the
Lord Almighty wishes me to go
there. I expect an act of God
that will blow this Court and
the jury out of the window to
protect me, if necessary. I want
to thunder that in the ears of
the American people. There
are a good many poodle dogs in
the newspaper business, and I
want to express my utter con-
tempt for some of those poodle
dogs. I am glad to notice that
the high-toned conscientious pa-
pers are saying almost with one
voice that it would be a stain on
the American name for the jury
to hang a man in my condition
on the 2d of July, when I was
precipitated upon the Presi-
dents

Dr. Spitzke. His crippled

29 A Voice from the most crowded corner of the court room
exclaimed, "Shoot him now." The prisoner glared around in a"
frightened manner. The Deputy Marshal endeavored to discover
the offender but was unsuccessful.

76

XIV. AMERICAN STATE TRIALS.

mental condition is due to a con-
genital cause and not to natural
causes. The shape of his head
and his face and certain physical
evidences of imperfect brain de-
velopment which I found, these
being a defective innervation of
the facial muscles, a symmetry
of the face and a pronounced de-
viation of the tongue to the left.
I found that he was born with
a brain whose two sides are not
equal, or so much unequal as to
constitute a diseased brain. The
end of his tongue deviated one-
half or three-quarters of an inch
from the medium line. I do not
wish it to be understood that on
any of the evidences singly I
would call a man insane.

The insanity of two cousins
from causes foreign to their an-
cestry would not prove anything
in the prisoner's case, but Abby
Maynard, who had been a bright
child until subjected to mes-
meric influences, threw the
strongest light on the congenital
insanity of the prisoner. It is a
common symptom of the insane,
that they consider themselves
the instruments of a higher pow-
er and according to their degree
of education they would make it
more or less plausible.

To the District Attorney. I
wrote a paper in the New York
Medical Record in which I said
there was not a scintilla of
doubt that Guiteau was insane
and that he would be admitted
into any asylum as a proper sub-
ject, and that a certain writer
on insanity would turn over in
his grave if Guiteau was hanged.

The District Attorney. Is that
true?

Dr. Spitzke. That is an ab-
surd question. You know that
was intended figuratively. I am

not here to give you instructions
on the use of metaphors.

Ouiteau. The doctor gives
you trouble, Corkhill. I am sor-
ry to see you heated up so. You
had better cool off and let us go
home.

Dr. Spitzke. I said in this
article that Mr. Blaine, Senator
Logan and the President recog-
nized the insanity of the pris-
oner. It was so stated in the pa-
pers of the day. I know that
there was a telegram from the
Cabinet to the American Minis-
ters in Europe stating that there
was no conspiracy but the as-
sassination was the act of an
insane man.

The Prisoner. That settles
you, Colonel.

Dr. Spitzke. I said that the
conviction of Guiteau would be
nothing more than a form of
lynch process which would re-
flect great discredit on Ameri-
can medical jurisprudence.

The District Attorney. When
you came into this case you had
not only expressed your opinion
as to the sanity or insanity of
the prisoner, but you had crit-
icized the law officer in charge
of the case and said that it
would be disgraceful to hang
the prisoner and that the case
ought never to go to a jury. You
pretend to say that you came
here as unbiased witness?

Witness. I mean to say that
I am an honest, scientific, un-
prejudiced witness.

The Prisoner. Let us go
home, Colonel; it is three
o'clock. You are in bad repute,
Corkhill, with every member of
this bar, and I tell President
Arthur publicly that he ought
to remove you at once. You are
an unmitigated nuisance in this

CHARLES J. GUITEAU.

77

case. If President Arthur has
any respect for his administra-
tion, he cannot do a better thing
than to give this man Corkhill
the go at once.

The Court. You have said
that once already.

The Prisoner. I want the
President to act upon it, too.
Corkhill is an unmitigated nui-
sance and has been from the
start. He lied to me all the
summer. He has shown himself
to be a man of low tastes and of
no conscience. The administra-
tion ought to kick him out at
once.

December 13.

Cross-examination of Dr. E.
C. Spitzke.

The District Attorney*. Do
you believe in God? If the
Court does not declare the ques-
tion is irrelevant I will answer.

The Court. You are not ob-
liged to answer that question.

The Prisoner. Do you believe
in a God, Corkhill? I have been
digging up your record and it
stinks worse than a mackerel.

Dr. Spitzke. I decline to an-
swer on principle. It is to my
point of view an impertinent
question in a country that guar-
antees civil and religious liberty.
I would say the family was
strongly drenched with heredit-
ary taint and that the prisoner
might or might not have inher-
ited the taint. But the belief
held by Luther W. Guiteau that
a sick man might be cured by
prayer is not a sign of insanity,
though it may be a sign of
weakness of judgment. The be-
lief of Mr. Abram Guiteau that

he would never die would be a
strong evidence of insanity.

Dr. Fordyce Barker.30 Have
carefully investigated and stud-
ied the subject of insanity. It
is a disease characterized by an
alteration of the mental facul-
ties and a perversion of the nor-
mal actions of the inaividual.
There can be no hereditary in-
sanity; there is undoubtedly a
hereditary tendency to insanity.
Sub-insanity in a remote gener-
ation does not prove an espe-
cial liability to inherit the dis-
ease. "Moral insanity," is not
found in medical science but is
a term loosely used to excuse or
palliate conduct otherwise unde-
finable. The habit of falsely
boasting of intimacy with im-
portant personages does not in-
dicate disease, but merely vice
and vanity. An inconsistent
claim of belief in Divine inspira-
tion is not evidence of insane
delusion. That a person con-
trolled himself and voluntarily
refrained from the act on which
he professes to have a command
from God, would show he had
not lost his power of will or self
control.

Eccentricities in language,
dress, modes of expression or
conduct, different from the or-
dinary standard of the world,
are usually the result of vanity
or self-love. There can be no
insanity unless the action of the
brain is disturbed.

Cross-examined. I do not
think there is any such thing as
moral insanity. I have no faith
in its existence whatever; moral
insanity is simply wickedness.
Uncontrollable impulse may ex-

30 Barker, Fordyce (1819-1891). Born, Wilton, Me.
cian and medical writer. Died in New York City.

Noted physi-

78

XIV. AMERICAN STATE TRIALS.

ist in a perfectly sane person, as
the result of bad habits or pas-
sions. If a man who is in the
habit of using tobacco or opium
is not able to break off, that hab-
it is an uncontrollable impulse.
But that is not insanity — it is a
vice. Insane people may be
very wicked and are responsible
for such wickedness as they
can restrain themselves from
doing: if they can find a motive
for doing or not doing an act of
wickedness, it shows that their
insanity has not destroyed their
power of will.

Henry Wood. Met prisoner
several times in connection with
his divorce proceedings. He at-
tempted to deliver a lecture in
Philadelphia on the "Second
Coming of Christ." He spoke
for about fifteen minutes and
then stopped, saying that his
book would soon be out, and
that everybody could then see
what he thought on the subject;
he then passed around his hat
for a collection.

Saw nothing to indicate un-
soundness of mind; he appeared
as a man of more than ordinary
intelligence, but wholly wanting
in principle.

Simon D. Phelps. Am a brok-
er; had conversations with him
about his newspaper scheme.
Thought him of Colonel Sellers
type — one who is going to make
great fortunes for himself and
friends — a genial, good-natured
fellow, differing, however, from
this man, who, instead 01 being
genial and good-natured, has the
most unbounded selfish disposi-
tion that I have ever met.

The Prisoner. That is the
best you can do; is it? That in-
dicates your brain.

The witness further stated on
cross-examination that he had
expressed the opinion that he
ought to be hanged.

December 14.

Rev. John L. Withrow (Bos-
ton). In 1878 prisoner had
commended himself to me as be-
ing a co-worker with Moody.
Asked if he could lecture in my
church — a reply to Ingersoll. At
the weekly prayer meetings he
was constantly taking part. He
was always to me an ill-natured
man. Lost sight of him until
the winter of 1879-80 when I
met him and was told he had
opened a law office. Never saw
anything to indicate that he was
a man of unsound mind. Should
have taken him to be a very
shrewd man. I should say a very
cute man instead of shrewd. The
difference is that one is sharper
than the other.

The District Attorney. And
shorter.

The Prisoner. He did not say
that. You put that in Corkhill.
You must have slept well last
night. While in Boston I at-
tended Dr. Withrop's church
and the Christian Association
regularly, and associated with
high-toned Christian people. I
say this for Corkhill's benefit,
on the ground of total deprav-
ity. I always have associated
with high-toned people. I don't
know any dead beats or disrep-
utable characters of either sex.
The object of this kind of ex-
amination is to settle this ques-
tion— whether I knew I was do-
ing wrong. My answer is, that
I don't care whether I knew I
was doing wrong or not. My
free agency was destroyed and
I hadn't any choice; and I will
take my chance with this Court

CHARLES J. GUITEAU.

79

and this jury and the Lord on
that point.

Charles A. Bryan (N. Y.).
First saw prisoner in February,
1881; he inquired what commis-
sion would be allowed for ob-
taining applications for insur-
ance; asked for advance, which
he did not get; gave me his
speech, "Garfield against Han-
cock," and spoke of his familiar-
ity with "Jim" Blaine and other
leading men of the Republican
Party. I advanced him five dol-
lars; said he was a prominent
applicant for the position of Con-
sul to Paris, and that he would
soon go to Washington to obtain
his appointment; came again on
5th of March, and pleaded very
hard for another advance. Had
never seen anything indicative
of unsoundness of mind but
thought him a pretty shrewd
sort of fellow. If I have ex-
pressed an opinion about him it
was that he ought to be hung;
that is my opinion now.

Henry M. Collyer (sworn).

Ouiteau. Oh, I remember you
as the man that put up that
Herald job on me. This is the
man who represented Reese
Bros. & Co. of Chicago at the
time I was tried before Judge
Donohue, who said I had a right
to retain the money.

Mr. Collyer. I had a suit
against Guiteau who had col-
lected money and not paid it
over; told him he was a thief
and a scoundrel.

The Prisoner. You never said
that, or I would have knocked
you down at the time, though I
wouldn't do it now. I am not
in that business.

The Court adjourned now on
account of the illness of Juror
Gates.

December 15.

The Prisoner. If your Honor
please, I want to make a little
speech. It is very important
that the health of this jury
should be cared for and we don't
want this thing to slip. It is a
very fine jury in every way —
good, honest, intelligent men. I
suggest to the Marshal that they
be allowed to take a walk of
four or five miles every day.
Some of them are not used to
good food, I understand, and it
disagrees with their digestion.

The Court. The Marshal will
look after that.

Henry M. Collyer.

Mr. Scoville. Henry M. Coll-
yer, have you ever expressed an
opinion as to the prisoner's
guilt?

Ouiteau. You are about as
stupid as you can be, Scoville.
You haven't got sense enough to
know better than to quiz a man
of his character.

Mr. Collyer. I might have ex-
pressed an opinion but do not
think I ever said prisoner ought
to be hung. At the time I knew
prisoner (1873) he was perfectly
competent to judge between
right and wrong.

T. M. Justice. Met prisoner
in Logansport in 1878; he was
selling a life of Moody. I
thought him sane then.

Ouiteau. Produce the book or
else you stand convicted before
the American people as a liar.
You infernal whelp, you, to
come here and pass me off as a
book agent. I was preaching
the Gospel — selling my own pro-
ductions. I never went into the
book business in my life.

Rev. Rush R. Shippen. Met
Guiteau at Mrs. Grant's board-
ing house. He was a little pe-

80

XIV. AMERICAN STATE TRIALS.

culiar but there was nothing in-
dicating insanity.

Dr. Noble Young. Am attend-
ing physician at the jail; saw
prisoner the day he was brought
there. He said he was inspired
to do the act, and that if the
President should die, he would
be confirmed in his belief of in-
spiration. Asked him once why
he should lay the blame of the
death upon the doctors. Said
things must take their natural
course. He is a perfectly sane
man, as bright and intelligent a
man as you will see on a sum-
mer's day. Never saw anything
about him that indicated insan-
ity.

Guiteau. You are examining
witnesses for the other side,
ain't you, Scoville? One would
think so from the way you are
going at this business. You are
about as stupid a man this
morning as I know of. I said
if the President recovered it
would show that the Lord had
countermanded His order, just
as He did in the case of Abra-
ham. He commanded him to
kill his son, and then counter-
manded the order. The Lord
has taken care of it, too, gentle-
men. I am entirely satisfied
with the way the Deity has
taken care of this case so far.
They think I am a great man at
the jail.

Mrs. Scoville. If the Court
please, I would like to ask a
question which I consider of
vital importance.

The Cotjrt. Yes.

The Prisoner. It is as much

as they can do to stand me with-
out any help from you.

Mr. Scoville. I prefer that it
should not be done.

Mrs. Scoville. I consider that
it is of vital importance, that is
all I have to say.

The Court. Suggest it to Mr.
Scoville and let him ask it.si

The Prisoner. It's as much
as they can do to stand me with-
out any talk from you. You did
it the other day, and I hope you
won't do it again. You are no
lawyer, but I agree with you on
some points.

Gen. Joseph S. Reynolds (Chi-
cago). Guiteau came to my of-
fice in Chicago in 1868, and ap-
plied for admission as a law
student. He would have made
a successful lawyer if he had
stuck to it industriously. Saw
him in jail here on July 14th.
After leaving the jail made
memoranda of the conversation.
He said that he expected Conk-
ling and others to befriend him
when there was a reaction in
the public feeling; that Mr.
Corkhill had promised to put off
the trial until the feeling had
changed in favor of the pris-
oner.

Guiteau. That's what Cork-
hill said, but he lied about it. I
always spoke of it as a removal.
I have found him out now. He's
a first-class fraua.

Gen. Reynolds. He made no
reference to inspiration; the
subject of the cause or motive
of the act was not alluded to.

Guiteau. I want to ask the
General if he was in the employ

3i Mrs. Scoville unexpectedly took part in the examination and
elicited an admission that a person with a malconstructed brain
may be more liable than others to insanity.

CHARLES J. GUITEAU. 81

of Mr. Corkhill at the time. He ing General Garfield and making
pretended to be my friend. If him out a monster,
he came in the guise of a detec- Quiteau. I want to say that
tive I want that fact shown up General Reynolds was the first
before the American people. man to open my eyes about
Gen. Reynolds. He said there Corkhill. Why, he says he's just
was no malice in the crime, that as bitter as gall on you. The
his act was a patriotic one. On whole thing was a gigantic lie
18th I told him that the President from beginning to end. If you
would recover, aad he seemed expect to succeed by lying, Cork-
much disappointed; showed him hill, you will find out you can't
papers giving the sentiments do it. God Almighty will strike
uttered by prominent Stalwart you dead just as He did Ananias
leaders regarding the crime, and and Sapphira.
he seemed stupefied; he said he The witness said that at the
thought these men would defend interview on the 18th, prisoner
him; he was astounded that wrote his address "To the Amer-
they should look at this act ican People."
merely as a bloody assassina- This paper was read to the
tion, as they had been denounc- jury by Mr. Porter as follows:

To the American People.

I have just discovered that all the papers setting forth my motives
in attempting the President's removal have been suppressed. I was
almost stupefied when I discovered the fact. I have not been per-
mitted to see a single paper since I came here. I have been most
outrageously deceived. I am just informed that not a newspaper
in America, and that not a man, woman or child has spoken in
my defense. I claim that the reason the people feel as they do is
because I have had no defense. I now wish to state distinctly why
I attempted to remove the President. I had read the newspapers
for and against the administration very carefully for two months
before I conceived the idea of removing him. Gradually, as the
result of reading the newspapers, the idea settled on me that if
the President was removed, it would unite the two factions of the
Republican Party, and thereby save the Government from going
into the hands of the ex-rebels and their northern allies. These
papers were the mouthpiece of the Stalwarts, the Administration
and the Democratic Party. I had none but the best of feelings
for the President personally. I had no malice and no murderous
intent. I acted solely for the good of the American people. I
appreciate all the religious sentiment and horror connected with
the attempted removal of the President. No one can surpass me
in this; but I put away all sentiment and did my duty to God and
the American people. I claim to be a gentleman and a Christian,
and do not dissipate in any way. I claim my attempt to remove
the President was a patriotic act, and demand a full hearing. Not
a soul in the universe knew of my purpose to remove the President.
It was my own conception and execution, and whether right or
wrong I take the entire responsibility of it.

82

XIV. AMERICAN STATE TRIALS.

The Prisoner. There is quite
a large demand for my auto-
graphs. I suppose I have given
a thousand of my autographs in
the last two weeks. It has been
suggested that I charge twenty-
five cents apiece for my auto-
graphs, but I won't do it, as
there is no money in this busi-
nes for me and I don't want
there should be any in it. I
notice on account of the weather
last night that Mr. Scoville's
lecture was not very successful.
I am going to make a speech. I
want to say, also that there are
certain office holders in this city
who are benefited by my inspira-
tion. They now hold nice, fat
offices, and they would never
have gotten them had it not
been for me. I ask them as men
of conscience to respond. We
want money. If they don't take
the hint I am going to call their
names. The rich men of New
York gave Mrs. Garfield and her
family two hundred thousand
dollars or three hundred thou-
sand dollars. It was a splendid
thing — a noble thing. I want
them now to do something for
me. I don't want anything for
the defense, but Mr. Scoville and
his family are poor. These fel-
lows who have been benefited by
the inspiration and are ashamed
to give their names can send it

on the sly and we won't give
their names.

General Reynolds. He wrote
the statement while I was pres-
ent and very rapidly; requested
that it should be published. He
seemed dispirited and dejected.

Guiteau. The mills of the
gods grind slow but they grind
sure. They will grind you down
to atoms, Corkhill.

The District Attorney read
the record under seal of a decree
of divorce in 1874 granted to
Anna Guiteau, from Charles J.
Guiteau on the ground of adul-
tery.

The Prisoner. I think it is a
great deal more moral and reli-
gious to have obtained a divorce
after I had married a woman I
had no business to have married
than to live along with her year
after year and have children by
her. So it was a matter of con-
science that I committed adul-
tery to get rid of her. I have
been strictly virtuous for the
past six or seven years, though,
and am a Christian.

General J. S. Reynolds (cross-
examined). The address to the
American people I said I would
keep. My reason for visiting the
jail was to ascertain whether
there was any socialistic plot in
the assassination; was satisfied
the prisoner had no associate.

The District Attorney read newspaper extracts which last witness
had brought to the jail and read to prisoner. They comprised
telegraphic dispatches from Senator Conkling expressing abhorrence
of the prisoner's act; also reports of interviews with General
Frederick Grant, Senator Logan and others; also editorials on the
assassination.

Guiteau. That is false; General Grant was always very kind and
polite to me. He liked the ring of my speech. That is what Fred.
Grant says. He is a nice youth, is he not? He is too lazy to get
a decent living. He is a dead beat, not I. I used to be a member
of Beecher's church. He was supposed to be a virtuous man then,

CHARLES J. GUITEAU. 83

and perhaps lie is now. I used to go up to Logan, pat him on the
back, and say, How are you, General? and he would say, How are
you, Guiteau? He thought I was a good fellow. Then they all
turned against me, just as Peter did when he denied the Saviour,
when he was on the cross and in trouble. But they have got over
it now and they are coming up like proper men. My life would
have been snuffed out at the depot that morning if God Almighty
had not protected me. I was thinking about it this morning when
I awoke, and it seemed to me that that act was the most audacious
thing a man could do — to shoot down the President, surrounded
by Cabinet officers and the police. I would not do it again for one
million dollars. But I was in such a desperate state of mind
under the pressure upon me that I could not have resisted it if I
were to be shot down the next moment. My free agency was
destroyed.

Mrs. Ella C. Grant. Prisoner Mrs. Grant. Never noticed

boarded at my house forty-one anything in him indicating un-

days, leaving two days before soundness of mind; considered

the murder of the President. him as intelligent as anyone in

Guiteau. The doctors did my house,

that, I simply shot at him. Mrs. Anna Dunmire (sworn).

The Prisoner. This lady is married and has children, and it is
an outrage for Corkhill to be permitted to call her and dig up her
reputation, which I will have to do if she attempts to do me any
harm. I ask the Court to stop this man Corkhill. He is an old
hog. He has no conscience or character or sense, and he is using
his official position to traduce this lady. If I was President of the
United States I would kick that man out of office in two hours.
I want to make a speech to President Arthur. There are scores of
first-class lawyers in New York City whom he knows, high-toned,
Christian, conscientious men, any one of whom would be a hun-
dred thousand times better than Corkhill. I ask President Arthur
as a personal favor, and in the name of the Republican Party, to
kick this man out of office at once. I made General Arthur Presi-
dent, and I have a right to make this personal request of him. If
he is the man I take him for he will act upon it.

Mrs. Dunmire. Was married in the Greeley campaign and ex-

to prisoner on 3d July, 1869, pected as a reward for his serv-

in Chicago, and Mr. and Mrs. ices to be appointed as Minister

Scoville were present at the to Chili.

marriage. We lived together in Guiteau. All the question

Chicago until the fall of 1871, he here is, whether my free agency

being engaged in law business; was or was not destroyed at the

then went to New York and time I fired the shot. All this

lived probably at fifteen or collateral evidence about my

twenty places. In New York he circumstances and about what I

followed politics; was engaged did or said or did not do or say

84

XIV. AMERICAN STATE TRIALS.

during the last forty years has
no bearing whatever on the
point; and with all due respect
to the Court, I do not think that
the Court in banc would admit
it.

Mrs. Dunmire. In my associ-
ation with prisoner I never no-
ticed any insanity.

The District Attorney. You
may take the witness.

Guiteau. Thank you, Mr.
Corkhill, that is the decentest
thing you have done on this
trial. I suppose Mr. Porter or
Mr. Davidge insisted on it. They
are supposed to be decent men.
Cut your cross - examination
short, Scoville. You are about
as consummate a jackass, I must
say, as I ever saw. You haven't
got the first conception of this
case yet. I would rather have
some ten-year-old boy try this
case than you. You ask ques-
tions that have no possible rele-
vancy in this issue. You have
got no brains and have got no
conception and can't see a foot
ahead of you. Get off the case
and I will do the business my-
self. That is my opinion of
you. I could have got three or
four first-class lawyers on this
case that were anxious to come

if you hadn't elbowed them off
with your consummate egotism
and vanity. You are taking al-
together too much responsibility
on this case. I have got to do
the heavy work myself, outside
of the Court and jury.

You don't know what you are
doing. Go home and go to bed.
You made a perfect fool of your-
self trying to lecture. You lec-
ture! ha, ha! I know nothing
against this lady's Christian
character, except that I know
her to be a high-toned Christian
lady. I know her well and have
much respect for her.

Dr. Francis D. Loring (Wash-
ington). Had made a specialty
of diseases of the eye and ear
for the purpose of determining
whether or not the appearance
of the eye gives indication of
disease of the brain; examined
prisoner's eyes at the jail and
found nothing indicating an af-
fection of the brain.

Dr. Allan McLane Hamilton^2
(New York). Made three per-
sonal examinations of the pris-
oner; found no apparent physi-
cal deformity, nor anything
whatever indicating any congen-
ital defect. There was an ap-
pearance of flatness on the top

32HAMLT0X, Allans- McLane (1848-1919). Born, Brooklyn, N. Y.
Studied medicine. His father, Philip, was the youngest son of
Alexander Hamilton (see 1 Am. St. Tr., p. 6) and his mother was
the daughter of Louis McLane of Delaware, Minister to London.
United States Senator and Secretary of State. He studied medicine
with Dr. Harvey B. Sands and graduated from the College of
Physicians and Surgeons, 1870. He became a great authority on
mental diseases; was a member of the leading medical societies of
this country and a fellow of the Royal Society of Edinburgh 1878.
Author of "Medical Jurisprudence" (1883), "Intimate Life of Alex-
ander Hamilton" and "Recollections of an Alienist," ante p. 7.
Professor of Mental Diseases, Cornell Univ., 1900-1903. During the
war he established a base hospital in Scotland for the British
Government. He died at Great Barrington, Mass.

CHARLES J. GUITEAU.

85

of the head, but that was owing
to the cutting of the hair. There
was no irregularity of contour;
it was fair sized. Did not find
any external evidence of mental
or physical disease; as to traits
of character found he was eccen-
tric and probably ill-tempered;
believed him to be sane, to be
able to distinguish between
right and wrong and to know
the consequences of his acts.

The Prisoner. With all re-
spect to the Court and jury, and
to the witness, I do not think
that this kind of testimony
amounts to a snap. How are
you . going to tell whether my
free agency was or was not de-
stroyed; I swear that my free
agency was destroyed by the
Deity, and how is the prosecu-
tion going to prove that it was
not? That is all the point that
the Court and jury have to pass
upon.

Dr. Hamilton. Cross - exam-
ined. Prisoner's scheme in re-
gard to the Inter-Ocean news-
paper did not prove a defect of
the prisoner's reasoning power.
It proved bad judgment, but
there are many men in the
world who are schemers and
visionaries and who have inspi-
ration.

December 21.sz

Dr. Hamilton. Cross - exam-
ined. The cases in which the
word "inspiration" is used by
insane people are when the in-
dividual imagined himself to be
the Savior or somebody else;
had a patient three or four
months ago who imagined that
she was the bride of the Savior;
another who thought he was the

Savior. It is a common thing
to find insane people believing
themselves members of the Trin-
ity and believing themselves in-
spired. There are a number of
people who say that they are
inspired, that they are pleasing
God in building churches or do-
ing certain other things. In
Utah people believe themselves
inspired to take three or four
wives.

The will does not control
physical impulse. If a man has
sufficient nervous disease to de-
stroy intellectual pressure and
prevent his exercising control of
his will he is insane.

The Prisoner. The will is
controlled by spirits — not by in-
tellectual process. Clark Mills
took a bust of my face. He
thought that someone hereafter
would be interested in it. He
thought I was a great man. He
was the man that did Jackson,
opposite the White House. He
thinks I am a greater man than
Jackson, though Jackson has
been President and I haven't-
been President yet. Mills want-
ed to immortalize his name by
getting it on my bust, so I took
off my beard for his benefit. He
is a great deal better man for
you than this one. He said that
one side of my head was badly
deficient.

Dr. Hamilton. Insanity mani-
fests itself in various ways in
the same patient. Experienced
people are sometimes deceived
and patients are frequently dis-
charged as cured when they
are not so. I do not agree with
the theory of moral insanity.
If insane persons know the na-

33 There was no session on December 19 and 20 on account of
the death of the wife of Juror Hobbs.

86

XIV. AMERICAN STATE TRIALS.

ture and consequences of their
acts they should be punished
like other people. There are a
great many eccentric people who
never become insane.

To Mr. Davidge. Sanity and
insanity are divided by a very
vague line; one may become
gradually shaded into the other;
many people may be medically
insane and yet know perfectly

well the difference between
right and wrong and know when
they are doing wrong.

Dr. Worcester (Boston) re-
called. Examined the prisoner
at the jail and have been in
daily attendance at the Court
room for several weeks past;
carefully watched prisoner's con-
duct; think he is sane.

The District Attorney put to witness a long hypothetical
question, embracing the history of the prisoner's life and the
facts that have appeared in the case, and asked whether as-
suming these propositions to be true, the prisoner was sane
or insane on the 2d of July last? "In my opinion he was
sane. ' '

The District Attorney read an additional hypothetical
question, reciting many of the discreditable incidents in the
prisoner's life.

To Mr. Scoville. My motive
in writing a letter to you inquir-
ing whether I could be of any
service to the prisoner was be-
cause at the time I believed the
prisoner to be insane. I changed
my opinion after my interview
with him in the jail, supported
by the evidence which I heard.
I formed my first opinion from
statements which I had seen
that he was actuated at the time
he shot the President by an in-
sane delusion, and that he was
under the influence of an irre-
sistible pressure which was the
outgrowth of that insane delu-
sion.

Ouiteau. You are stupid, Sco-
ville, as the witness is. You are
just compromising my case
every time on cross-examination.
You are no more fit to manage
this case than a ten-year-old
school boy. You have no ability

in examining witnesses. Your
business is in examining titlas.
You had no business to come
here at all and compromise me
with your blunderbuss way.

To Mr. Davidge. My first im-
pressions had been formed on
newspaper reports and conver-
sations, but that opinion has
been changed by examination
and observation. Communicated
that change to Mr. Scoville to a
certain extent personally, and to
the full extent to Mr. Reed,
prior to today.

The Prisoner. Scoville, you
should have let the man go two
hours ago. If I were indicted
for manslaughter and Scoville
defended me I would be hanged
for murder. If you had let this
man go two hours ago it would
have been better for the de-
fense. I tell him to get out of

CHARLES J. GUITEAU.

87

the case. He is ruining my case.
He is not fit to try it.

Mr. Scoville. No one realizes
that more than myself.

The Prisoner. Then get out
of the case, you consummate
idiot. You have got no more
brains for this kind of work
than a fool. You compromise
my case in every move you take.
If you had let that man go at
one o'clock he would have done
me no harm.

Mr. Scoville. If the Court
please, I have no more questions
to ask the witness.

The Prisoner. You had better
get off the case. I expect that
the Almighty, notwithstanding
Scoville's asinine character, will
see that I am protected. I ex-
pect that it will take a special
act of God to do it. You had
better send in your bill to Cork-
hill, Scoville, and go home. You
seem to be working for the Gov-
ernment on this case. I won't
have you stay and compromise
my case, you may be sure of
that. You had better get ready
and go home to Chicago at once.
It is an outrage on justice for
this man to come here totally
inexperienced in criminal mat-
ters and compromise this case.
I request him publicly to get off
the case. I would rather take
my chances with Charley Reed,
who is a first-class cross-exam-
iner, and John B. Townsend and
Magruger at this late day than
to have this idiot go along com-
promising my case. He has got
no wit and no sense and be-
tween him and Corkhill I have a
pretty hard time.

Dec. 22.
Dr. Theodore Dlmon. Had
been Superintendent of the asy-

lum for insane criminals at Au-
burn, N. Y. Made a personal
examination of the prisoner; no-
ticed him in Court and heard
his testimony; considered him
sane.

The District Attorney pro-
pounded the hypothetical ques-
tion.

Dr. Dimon. It is my opinion
that he was sane.

Cross-examined. He did not
attempt to conceal anything; ap-
peared open, frank and sincere
in his statements; had no rea-
son to suppose that he was
feigning. In the Court room
think he has been acting a part
natural to his circumstances and
character. Egotism is one of
the manifestations of insanity.
The excessive idea of importance
of everything that concerns
themselves and an absence of
ideas of whatever injurious ef-
fect their conduct might have on
others. Prisoner's attempt to
lecture and his habit of leaving
the stage in a great hurry might
be an indication of his unsound-
ness of mind, or might be an in-
dication of intoxication. Though
the facts tended to show the
prisoner was sane, many of them
taken individually were not in-
consistent with the existence of
an unsound mind; many insane
persons have good memories and
are capable of laying and fol-
lowing plans of action; I do not
believe in personal divine in-
spiration in this age of the
world.

The Prisoner. Well, doctor,
if the Lord could inspire a man
two thousand years ago why
can't He do it today? Is there
anything in human nature dif-
ferent now from what it was

88

XIV. AMERICAN STATE TRIALS.

then? What is your idea on
that?

Dr. Dimon. If the Lord did
inspire anybody two thousand
years ago He can now if He
choose.

The Prisoner. That is my
idea on that. He not only can,
but He did in this particular
case.

Dr. Dimon. In England 50
per cent of the insanity was
heredity, in my asylum only four
or five per cent was.

The Prisoner. These experts,
allow me to say, are high-toned.
High-toned, respectable men,
but with all respect I say that
they hang as many men as the
doctors kill. There is no ques-
tion about General Garfield be-
ing alive to-day, whatever my
motive had been, if the doctors
had not killed him, but the Lord
allowed the doctors to finish the
work I began, because He
wanted him to go; and he did
not go before his time any way.
We have all got to go. It is a
question of time.

D. McLean Shaw (recalled)
Guiteau. This is the man who

told the lie about Booth. We
have your record, Shaw, over
there in New Jersey, where you
were indicted for perjury. You
only got off on a technical quib-
ble.

Mr. Shaw. Was indicted for
perjury in reference to the pay-
ment of a note for $1000. Tried
and acquitted on that charge,
on my own desire to clear up
the case.

Guiteau. Shaw's statement
about Booth is the most extraor-
dinary statement that ever
came from a human mouth.
There is not one word of truth
in it, and you know it, too. God
Almighty will curse you for it.
I never talked;' to you about
Booth in my life; you are
marked for life; it is the most
extraordinary lie that ever was
concocted. I never mentioned
the subject of Booth to Shaw;
it is not likely I would wait ten
years to kill some great man.
It is the most outrageous thing
ever concocted by a human be-
ing; it is a lie on its face and
any intelligent man would say
so.

December 23.

Guiteau. It is said that I have been abusing Mr. Scoville. I
want to make a speech about that. Mr. Scoville is doing very well
in this case considering his theory, but he is not a criminal lawyer.
He is a good fellow and a first-class examiner of titles, but I cannot
have Mr. Scoville here compromising my case. There is no lawyer
in this Court room but knows that he has asked questions for the
defense which have been a positive injury. I cannot sit here when
my life is at stake and have him compromise my case in this way.
My friend, Charles H. Reed, who was for twelve years District
Attorney at Chicago and a first-class lawyer, has very kindly
consented to assume the charge of this case, and I introduce him
to your Honor, the jury and the American people. He is a good
fellow. Scoville is a good fellow, too, and I want him to continue
in this case and help in every way. I have not talked on this case
and will not talk on it any more than is absolutely necessary for

CHARLES J. GUITEAU.

89

truth and justice. I am not going to sit here and allow witnesses'
to tell that which is absolutely false even if I have to interrupt the
Court and jury and to seem indecorous. I claim to be a gentleman
and I want this trial to be conducted in a proper spirit. But I
have been greatly excited on account of certain witnesses and on
account of Mr. Scoville's inexperience. I expected to have three
or four first-class lawyers here — Mr. John D. Townsend, of New
York, Judge Magruder, of Maryland, and others who know all about
this criminal business. But they have not come and my opinion
is that Mr. Scoville elbowed them off.

Mr. Scoville said he had endeavored to obtain such assistance in
the case as would be appropriate. Mr. Reed would therefore appear
openly in the case if the Court did not consider it inconsistent with
the fact that he had been a witness.

Mr. Porter stated the prosecution would raise no objection to
Mr. Reed appearing as counsel.

William A. Edwards (Brook-
lyn). I substantiate the state-
ment of Mr. Shaw, in whose of-
fice I was a clerk, that Guiteau
said he would some day kill the
President. It made little im-
pression upon me as I then
thought he was the last man in
the world to do an act involv-
ing personal danger.

Dr. Spencer H. Talbot. Am
Medical Superintendent of the
Homeopathic Asylum for tne
Insane at Middletown, N. Y.
Have closely observed prisoner
and listened to his testimony.
Believe he is sane and was so on
the 2d July.

The Prisoner. How much do
you get for this opinion?
The Court. Keep silence.

The Prisoner. All right, your
Honor, I'll be quiet now.

Mr. Davidge. Your Honor
will note that the free agency
quoted by the prisoner operates
all right now as he can keep
quiet when he wants to.

The Prisoner. I do not pre-
tend to say that I am insane
now any more than you are, but
on the 2d July and for thirty

days prior I was insane. That's
the issue.

Mr. Davidge. Then if you are
sane now you can behave your-
self.

The Prisoner. I come here as
my own counsel, and I have just
as good a right to talk as you
have. You are altogether too
talky this morning. You are
worse than a boar with the
diarrhoea. You had better go
home.

Cross-examination.

Dr. Talbot. Inspiration is
merely insane delusion and there
is no evidence that he labored
under an insane delusion. He
thought in Court prisoner was
exaggerating his tendencies to
egotism, vanity and ingratitude.
Did not consider these tenden-
cies peculiar either to the sane
or insane. They may be seen
in either case.

(hiiteau. There is no use
wasting time with such a fel-
low as he is. You are making
too much out of him. Give him
a kick and let him go. That is
the way to treat a man of his
character. He ain't anything;
he was nothing but a little sub

90

XIV. AMERICAN STATE TRIALS.

there in Shaw's office about ten
years ago, and used to serve
papers. He is not a lawyer and
has not got brains enough after
ten years' effort to be admitted.
Let him go. He ain't no good.

Dr. Henry P. Stearns. Am Su-
perintendent of the Hartford
Retreat for the Insane. Made
examinations of prisoner at the
jail. On the hypothetical ques-
tion I think he was sane on
July 2d.

Guiteau. You came to me,
doctor, as a friend, and I, sup-
posing you were going to testify
for the defense, talked very free-
ly with you about my religious
feelings and all about myself,
but Corkhill's money was too
much for you. I want to say
here that I don't pretend that I
am any more insane at this min-
ute than Davidge. I won't say
Corkhill, for I think he is
cracked. I was insane on July
2d. I claim I don't care what
these experts say about my san-
ity now, that's got nothing to
do with it.

Dr. Stearns to Mr. Scoville. I
do not think he honestly be-
lieved he was inspired to kill
the President.

Cross-examined. I admit
there are in the Guiteau family

more than the ordinary propor-
tion of cases of insanity.

The Prisoner. When you get
in the domain of spiritology, you
are in the dark, doctor. You
can't tell what kind of a spirit
will take possession of a man's
mind and impel him to an act.
I don't "care about your head or
antecedents. The whole thing
rests on the spirit that gets into
you. A man may be perfectly
insane at the time of the com-
mission of an act and an hour
after be sane. I wouldn't go to
the depot again and shoot at
President Garfield for a million
dollars from the mind I have on
me now and an hour after the
act was committed, and yet for
thirty days prior I would have
shot him at any time I could.
If I knew I was to be shot dead
the next minute I could not
have resisted it. That is all
there's to it. I have said it
about fifty times.

The Couet. Then don't say it
again.

The Prisoner. I say it be-
cause the whole theory of the
prosecution is ridiculous.

Dr. Stearns. In almost all
forms of insanity, memory is the
first faculty to show impair-
ment.

December 24-

The Prisoner. Allow me to ask you if you hold that a man
cannot be insane in a specific act without his brain is diseased?
Is that your theory?

Mr. Porter. One moment.

The Prisoner. Keep quiet, Mr. Porter. I am here as my own
counsel.

Mr. Davidge (to Mr. Scoville). Do you adopt that question?

Mr. Scoville. Yes.

The Court (to the witness). You may answer.

The Witness (answering). The very term insanity implies a
disease of the brain.

CHARLES J. GUITEAU. 91

The Prisoner. Then a man cannot be insane without his brain
is diseased in your notion?

Mr. Porter. No colloquy with the criminal.

The Prisoner. I am no criminal. "Who's doing this, you or the
Court?

Mr. Porter. He is the criminal, your Honor.

The Prisoner. I am no more a criminal than you are.

Mr. Porter. He swears that he is a criminal.

The Prisoner. I am no more a criminal than you are. I stand a
great deal better outside than you do. The papers say I am a bigger
man than old Porter.

Mr. Davidge. I believe your Honor has ruled that the questions
of the criminal must pass through his counsel.

Mr. Porter. I shall be compelled, if these interruptions are con-
tinued, to have them made from the dock.

The Prisoner. From the dock, eh? Try that on.

The Court. That is a question that has suggested itself to me.

The Prisoner. I am here as my own counsel under the law of
every State in the Union.

The Court. Keep silent and let the examination proceed.

The District Attorney. I think, your Honor, that is a very proper
suggestion from Judge Porter and it is one which we shall insist
upon if these interruptions are continued.

Dr. James Strong. Am Su- bodily condition good; insanity

perintendent of the Insane Asy- is usually associated with bodi-

lum at Cleveland; examined ly health,
prisoner in the jail, found his

The Prisoner. And now I will help you by saying that I am in
excellent health and spirits and that I am not insane.

Mr. Porter. I must insist that these interruptions be stopped.

The Prisoner. If you can tell me whether my free agency was
destroyed that will help the matter. This great lot of rubbish has
no possible bearing and I think it is an outrage to waste time so.

Dr. Strong. His organs of perception were keen. He seemed to
perceive quickly and thoroughly. His

The Prisoner. In other words, that I was no fool. The Lord
never employs a fool to do His work. He gets the best brains He
can find every time, and He takes care of the man and that is what
He is going to do with me.

Mr. Porter. I notice that these interruptions are very annoying
to the jury and to your Honor, and the prisoner's silence must be
enforced, or when he speaks he must speak as an accused and
indicted party from the dock. In the next instance in which these
interruptions occur I shall ask that he be assigned to the place
to which the law assigns him.

The Prisoner. You are very much excited.

92

XIV. AMERICAN STATE TRIALS.

pital for the Insane, and Dr.
Orpheus Evarts, of College Hill,
Ohio, medical superintendent of
the Sanitarium, sustained the
sanity of the prisoner, not only
now, but on 2d July. The latter
said in his opinion the prisoner
had been exaggerating his own
peculiarities, which were egot-
ism, sharpness, smartness, vul-
garity and ingratitude.

The Prisoner. Tomorrow is
Christmas. I wish the Court,
the jury and the American peo-
ple and everybody else a happy
Christmas. I am happy.

December 27.

Guiteau. I had a nice Christmas. I hope everybody else did.
I had a nice Christmas dinner, fruits, flowers, candies, etc., and
plenty of lady visitors and gentlemen.

Dr. Strong. Prisoner thought
quickly and consecutively which
struck me he had a marked con-
trol of his mind, because a man
cannot fix his attention on a
given subject without exercising
his will power. I am convinced
prisoner's mental organization
is thoroughly intact, and that all
his mental processes work har-
moniously. He is sound in his
perceptions, his sensations, his
thoughts, his will. Such a con-
dition I look upon as entirely
incompatible with insanity.

Dr. Abram M. Shew, Superin-
tendent of the Middletown Hos-

Dr. A. E. McDonald. Am
Superintendent of the Ward's
Island, N. Y., Insane Asylum.
Have treated some 6,000 cases
of insanity. Inspiration always
overrides all fear of bodily pain
or injury, and renders the per-
son who believes he is acting
under inspiration wholly obliv-
ious to such considerations.
Their acts are sudden in both
conception and execution as a
rule, and they seldom attempt
to avoid the consequences in any
way. Do not believe in tempor-
ary insanity, in which the act
committed is the only evidence
of insanity and where the per-
son is to all appearances per-
fectly sane in other respects
both before and after the act.
Have never seen an instance of
it. Visited prisoner in his cell
and made the usual mental ex-
amination. He always spoke of
the act as my "conception" and

"soon after I conceived the re-
moval of the President." Asked
him why, if the act was the
Almighty's and he was simply
the agent, he was so particular
as to practice his aim, and why
he did not trust the details to
the Almighty? He hesitated,
flushed a little, and said: "The
Almighty often trusts the de-
tails to his agents." Asked him
what plans he had for the fu-
ture; he said, while he did not
consider himself insane, he had
studied up the question of in-
sanity and believed he would
be found by a jury to be legally
insane at the time of the com-
mission of the act, and would be
acquitted. Asked, "What do you
suppose will be done with you?"
he replied, "I will be sent to an
insane asylum, and I find, under
the law, I can after a few
months, have a commission of
lunacy to pass upon my case,

CHARLES J. QVITEAU.

93

and of course they will find me
sane and I will be discharged."
Believe from my examination
and observations he is a per-
fectly sane man. I have noticed
his most violent interruptions
are made when the weight of
evidence is against him.

Cross-examination. Insane
persons ara more liable to be
adjudged sane than the reverse.
Overwork, care and anxiety
might produce dyspepsia, which
with other causes might lead to
disease of the brain, and that in
its turn would stimulate insan-
ity.

December 28.

Br, McDonald, cross-examined.

Mr. Scoville. Have you ever
met with an instance of tem-
porary insanity? Yes, sir, I
knew of a man who was insane
for" twenty-four hours. And then
he got well? No. sir, he died.
Believe Guiteau is feigning in-

sanity and with that idea has
been acting a part.

Dr. Randolf Barksdale. Am
Superintendent of the Central
Lunatic Asylum, Virginia. Vis-
ited prisoner in jail and ob-
served him in court. Believe he
is feigning in court; that he is
sane now and on July 2d.

Cross'-examination. I deny
ever having said I believed pris-
oner to be insane.

Dr. John H. Callender. Am
Superintendent of the Tennessee
State Asylum. As to the hypo-
thetical questions read, taking
the facts set forth to be true,
prisoner is undoubtedly sane.

Mr. Scoville. Suppose the per-
son in the hypothetical question
believed that he was in partner-
ship with Jesus Christ & Co. in
the establishment of the Theo-
crat, would that make any dif-
ference in your answer?

Mr. Porter. I object to that question as irrelevant and blas-
phemous, and when counsel puts such a question in a Christian
Court I hold (whatever your Honor may hold) that it is time to
rebuke him and his client. It is a hypothesis that no man who
believes that God was our Creator should be permitted for one
moment to present in a Court of justice and before this audience.
The counsel can predicate his question on facts which have been
proved, but not on those which assume that we make no difference
between the Redeemer of mankind and ourselves.

The Prisoner. How about Christ and Paul? Paul was in partner-
ship with the Saviour. Have not I just as much right as Paul?

Mr. Porter. I must insist, your Honor, in behalf of the Govern-
ment and to vindicate it, that this criminal shall be remanded to
the dock.

The Prisoner. You had better mind your own business, Porter.

Mr. Davidge. Yesterday was the commencement of the seventh
week of this trial of the prisoner for the assasination of the ruler
of fifty millions of people. Not a single day has passed without
being characterized by aspersions on the part of the prisoner in
contempt of the majesty of the law, in contempt of the authority
of this Court, and imposing obstacles to the administration of jus-
tice. We have understood from the beginning that your Honor not
only desired to accord t© this prisoner the full measure of his con-
stitutional rights, but that you wished furthermore not even to

94 XIV. AMERICAN STATE TRIALS.

appear to impinge on those rights. We have allowed day after day
to pass without making any application for judicial coercion. The
old practice was, that a man indicted for crime should always be in
the dock, no matter who or what he should be. The relaxation has
been for the benefit of counsel and not for the benefit of the prisoner.

The Prisoner. I am quiet when I am treated decently, not other-
wise. It is all caused by the mean, dirty way in which the pros-
ecution have conducted themselves. If they had conducted them-
selves as high-toned lawyers there would have been no trouble. It
has been all caused by Corkhill and Porter.

Mr. Davidge. The place of the criminal is in the dock. General
Sickles sat in the dock, and the Court refused to relax the rule,
notwithstanding he was a lawyer in good standing, and at that
time a member of the House of Representatives. Prisoner's out-
rageous, scandalous insults to my senior (Mr. Porter) furnish the
necessity for calling for judicial decision on this motion.

The Prisoner. I am quiet enough when I am treated properly,
but not when I am abused. No decent man would be. Sickles did
not appear as his own counsel, and that is the difference between
Sickles and me.

Mr. Reed said under modern practise the prisoner was allowed
to sit beside his counsel, such was the case in New York, also in
the Chicago Courts, and appealed for kindly treatment of a diseased,
deluded man.

The District Attorney. The time has come for action in the in-
terest and for the vindication of justice itself. There has been
some public criticism with regard to the disgraceful conduct of
the man here on trial, because his conduct was an affront to the
dignity of the Court, offensive to good order and against decency.
Your Honor has borne with it very quietly, and I am here now to
say, I think very judiciously. At the opening of this trial we were
met with but one issue, as to whether the man was sane or insane.
There have been brought here by the Government the most eminent
men in their profession, for no other purpose than to honestly
determine whether the man was in his right mind or not. One
of the points in settling this matter was the conduct of the prisoner
in Court. It was desired that the man should be allowed the free
use of any conduct he might be pleased to exhibit. The prisoner
has had every indulgence which justice requires. He may abuse
me and these distinguished gentlemen, but these utterances must
come hereafter from the dock. He has around him policemen who
do not belong to the official body of this Court. The President has
appointed a Marshal, and the law imposes on him the safety and
care of the prisoner. I want the Marshal to take him and put
him in the dock and take care of him. I want no more special
guards. I want him to stand here on trial as any other man
would stand.

The Prisoner. You cannot convict me and you want to shoot
me. That is the confession of weakness. You want me to be shot;
but I don't believe the Lord will allow it.

CHARLES J. GUITEAU. 95

The District Attorney. The Marshal is responsible if he escapes.
Let the other officers who are responsible for the protection of
private citizens, return to their beats.

The Prisoner. The American people will have something to say
if you put me in that dock and I get shot, and God Almighty will
curse you, Corkhill, you wretch, and any other man who attempts
to do me violence.

Mr. Scoville. I made on objection to the motion, but I now
disdain further concurrence. There is not one man or woman
within hearing of Mr. Corkhill's voice but understood it to be an
invitation for an assassin to step up and shoot that man when
put in the dock.

Mr. Porter. That imputation against this gentleman, just as vile
as the obscene charges of the prisoner, calls for vindication. From
the beginning the District Attorney has observed a spirit of fair-
ness, of honor, of clemency, of forbearance toward the prisoner
unexampled in any State trial reported in Christian history. Once
publicly when one of us was bowed down by an affliction such as
comes to us rarely in life, the other members of this jury were
menaced by this man. One of these jurors was threatened with a
new inspiration by which he should die before this case came
to an end.

The Prisoner. You don't know but the Lord will do it.

Mr. Porter. It may be in the province of God but not in the
province of Guiteau. The assassin of the President will assasinate
no more forever, and the voice which is not silenced now will be
as dumb as that of his victim when the end of the law is reached.
The time has now come when the law must make its appearance
in this Court room, and when a man who pretends to be a maniac
shall no longer sit at the counsel table and exercise privileges
which you would accord to no member of the American Bar.

Judge Cox. It is hardly necessary to say that the conduct of
the prisoner had been in persistent violation of order and decorum.
In the beginning, the only methods suggested which could be
resorted to to suppress this disorder were such as must infringe
the constitutional rights of the prisoner. It had hitherto been an
impression shared by the Court and counsel, that the prisoner's
conduct and language in Court would afford the best indication of
his mental and moral character, and contribute largely to the
enlightenment of Court and jury on the question of his respon-
sibility. At this stage of the trial, however, this object seems to
have been accomplished. The proper place for a prisoner on trial
for felony was the dock. He could only come within the bar to
be arraigned and receive sentence. If the Court granted him the
privilege of sitting beside his counsel, it was a privilege which
could be withdrawn summarily. While the prisoner had the un-
doubted right to act as his own counsel, or to appear by counsel,
he could not exercise both rights simultaneously. Having accepted
counsel, the prisoner had waived his right to appear as such in

96 XIV. AMERICAN STATE TRIALS.

person. On consideration of all the circumstances, the Court
thought that the motion would have to be granted and the prisoner
will be placed in the dock, but shall have the fullest protection.

The Prisoner. To settle the matter, I will sit quietly here. Will
it not be satisfactory if I keep quiet and stay here? If I sit in
the dock I may be worse. I have no objection to going to the dock
if your Honor says so. I move that the Court room be cleared if
I am going into the dock.

The Prisoner having been placed in the dock, Mr. Porter said:
It is to be borne in mind that the chimera which seems to haunt the
prisoner has no foundation. He is in no danger except from the
hangman's rope; and so long as an officer of the law stands beside
him, no man will imperil that officer in the discharge of his public
duty by firing a shot at the prisoner.

The Prisoner. I would not be afraid to go all over "Washington
alone or New York or Boston. Thunder that broadcast. God
Almighty will curse the prosecution. Take time on this, Corkhill.
You are having your own way but God grinds slow but sure.

Mr. Porter's objection to Mr. Scoville's question on the ground
of its being irreverent and blasphemous was overruled by the
Court.

Mr. Porter. As this case will be historical, as our exceptions are
utterly unavailing, as we can in no case appeal in behalf of the
American Government and those they represent, I protest against
this decision passing into a precedent.

Dr. Callender. I should not self-deceit, impudence, audacity

consider it an insane delusion and insolence.
for a man to profess himself as The Prisoner. In other words,

a member of the firm of Jesus when I am assaulted, I talk

Christ & Co. unless there were back. Porter expects to get five

other evidences of disease. Do thousand dollars for hanging

not think prisoner has been me. He sees his money slipping

feigning insanity in the court away because the American peo-

room. He has merely been ex- pie aon't want me hanged, and

agerating his characteristics of he is mad at me.

December 29.

Guiteau. Coming up in the van this morning I noticed that -the
usual policeman were withdrawn. I want to say emphatically that
if I was turned out tomorrow I could take care of myself, but as
long as I am in custody of the Court, the Court must take care
of me. The greatest danger of being shot is in coming from the
van to the Court house. I want your Honor to order that I have
the usual number of policemen coming up in the van. The cranks
are not all dead yet, though they have been dying recently. I got
fifty letters yesterday, most of them sympathetic, asking for my
autograph. There were only two or three cranks in the whole lot.
But one crank could do the business if he had the nerve. They

CHARLES J. GUITEAU. 97

think I am a great man and a good fellow, but when I come into
Court I am abused and villified. Human nature can't stand it and
I won't stand it. When I am attacked I defend myself. If people
treat me well, I treat them well. A crank might shoot at me. He
wouldn't hit me, though. He's liable to shoot at me and hit some-
body else. If your Honor please, there is altogether too much
draught coming into this window. A draught coming on me and
the captain. 34
Mr. Scoville read the following letter to Senator Don Cameron:

Dear Sir. — I am on trial for my life, and I need money. I am
a Stalwart of the Stalwarts; and so are you. You think a good
deal of General Arthur, and so do I. My inspiration made him
President and I am going to ask you to let me have five nundred
dollars. If I get out of this I will return it, if not, charge it to
the Stalwarts. Yours for our cause, and very cordially,

Charles Guiteau.

P. S. — Please give your check to my brother, John W. Guiteau,
of Boston, and make it payable to my order.

Ghiiteau. I gave that letter to my brother ten days ago and told
him to go to Senator Cameron and request him for $500.

I say that my brother is a perfect nuisance and he always has
been. I want him to go off the case and go back to Boston. There
is no fraternal feeling between us. In religious matters I associate
with high-toned men like Mr. Moody and Mr. Pentecost, and in
politics with Mr. Grant and all these kind of men, so far as I have
got any friends. I don't think his feeling is worth a snap. This
shows the mean character of my brother, to turn this private letter
to Senator Cameron over to Mr. Scoville.

Dr. Walter Kempster. Am individual unless it deviated

Superintendent of the Wiscon- grossly from what they call a

sin Hospital for the Insane, typical head, and the facts in

Was given a cast of Guiteau's the hypothetical question showed

head and it is a very well shapea the prisoner to be sane. I saw

head that compared very favor- him at the jail. He said he was

ably with the majority of heads not what experts would call in-

in the community. (He pro- sane, but he was legally insane,

duced a number of charts or If he could get the jury to be-

diagrams, taken from the heads lieve he was acting under an

of different individuals with a inspiration when he shot the

conformator.) The shape of the President, that would be all he

head did not indicate anything wanted, and would acquit him.
of the sanity or insanity of the

December SO.

Guiteau. Some of the leading people in America consider me a
very fine fellow. Last night at eight o'clock, I received a tele-

3* The officers closed the windows behind the prisoner.

98 XIV. AMERICAN STATE TRIALS.

graphic dispatch from Boston which I will read for the edification
of this Court and jury and the American people. It says: "Boston
sympathizes with you. You are yet to be President. — A Host of
Admirers." I don't know but two men in America who want me
hung. One is Judge Porter, who expects to get five thousand dollars
for it. The other is Corkhill. Corkhill is booked to be removed
anyway. He wants to get even with me, because he thinks I am
the man that did it. It is said I am too severe in my talk. I have
something to say on that. What do you think of this: Woe unto
you, ye hypocrites, scribes and Pharisees! How can you escape
damnation in hell? Ye generation of vipers! How can you escape
the damnation of hell? Who said that? Who uses that language?
The meekly and lowly Jesus. I put my ideas in sharp language
and have the example of the Saviour for it. He called things by
their right names. When anyone struck at Him He struck back.
He did not lie down like a craven, and I don't. I refer my nomi-
nation to the Republican Convention for 1884. I think I will be
there. I don't think this jury is going into the hanging business
to enable Mr. Porter to get five thousand dollars. The American
people don't want me hung.

Br. Kempster. I do not be- hour. Believe Sickles was sane

lieve in temporary insanity; when he shot Key, and that

that a person could be insane Coles, who shot Hiscock, was

and wholly recover from it in an insane.

Mr. Scoville asked that he be allowed after the prosecution closed
to call other experts on and would like a recess to prepare his
questions. He requested that during this time the jury be allowed
to separate and go to their homes. Mr. Corkhill objected.

The Foreman. The jury do not want to separate.

The Prisoner. These men are all high-toned Christian men and
good men socially, but your money taken from the United States
Government has been too much for them, that is all there is about
it. They have been lying around this trial and sitting over there
at Willard's hotel night after night in consultation with Corkhill
and his associates and everybody knows it in this court room.

Mr. Porter. I must insist, your Honor, that if this clamor is
continued the dock shall be removed to a distance from the jury
which shall at least relieve them from the annoyance by the inter-
ruptions of the prisoner.

The Prisoner. Dismiss your indictment and that will dismiss
the dock and let me go.

Mr. Porter. I do not ask for immediate action on this suggestion,
but I ask that your Honor will consider the question.

The Coubt. If anything can be done to silence the clamor the
Court will certainly do it. I believe counsel for the defense honestly
desire it to be done.

CHARLES J. GUITEAU.

99

Dr. John P. Gray. Am Super-
intendent of New York State
Asylum. Have made a study of
insanity and treated 12,000
cases. Have never seen a case
where the only indication of in-
sanity was an exhibition of im-
morality or wickedness; do not
believe in moral insanity. After
examination of prisoner in the
jail I asked him: "Suppose the
President had offered you the
Paris Consulship while you
were reflecting upon the subject

of removing him, would you still
have shot him?" The reply was:
"Well, that would have settled
the matter. I should have taken
the position and left." As to
the alleged inspiration, he said
it was in the form of a pressure
constantly upon him to commit
the act. He also said: "You
may add this to it; that the
responsibility lies on the Deity
and not on me and that in law
is insanity.

The Prisoner. That is all there is to this case. There was no
use of talking about it for the last six weeks. There were thirty-
eight cases of inspiration of this kind in the Bible. Of course, we
have to trust in the doctor's integrity as to what he reads now.
I am willing to trust him. He is a high-toned gentleman and a man
of integrity. If he happens to go wrong, I shall correct him, for I
never forget anything.

December 31.

Dr. Or ay. In looking over
the history of the prisoner as
given to me by himself, and con-
sidering his physical state
through life, I could see no evi-
dence anywhere when he had
been insane or had any symp-
toms of insanity. As to the de-
lusion of command by the Al-
mighty, such self-control, self-
direction and self-guidance as he
had is antagonistic to anything
that I have ever seen in my per-
sonal experience with the insane
having such delusions. The fact

of his preparing carefully for his
own self-safety and protection is
inconsistent with insanity. He
stated that he had looked up the
subject of insanity and had con-
sidered it in connection with his
defense. That would not be con-
sistent with anything in the
nature of insanity I have ob-
served. I took into consider-
ation also the deliberation with
which he proceeded, as well as
the change of purpose which
from time to time he mani-
fested.

Guiteau. Dr. Gray is arguing the case for the prosecution, which
no expert has a right to do. Let him confine himself to facts and
not to argument. Porter will do that business — Judge Porter I
mean. Tomorow is New Year's Day, 1882. I receive my calls this
year in jail. Anybody can come that can get in. I will be glad
to see anybody that can get in. I wish everybody a Happy New
Year.

January S, 1882.

Guiteau. I had a very Happy New Year. I hope everyone else
did. I had plenty of visitors, high-toned, middle-toned and low-

100 XIV. AMERICAN STATE TRIALS.

toned people, taking in the whole crowd, showing that public
opinion is in my favor. They were very glad to see me and ex-
pressed the opinion without one dissenting voice that I would be
acquitted.

Dr. John P. Gray. Cross-ex- romania" incendiarism. Their

amined. In giving my opinion designations are simply conveni-

I had not taken into account his ent terms which have been in-

evidence, but taking that ele- vented to cover certain crimes,

ment into account, my opinion Insanity is never transmitted

would still be the same, that the any more than cancer. A sus-

prisoner is sane and was sane ceptibility to insanity is un-

on the 2d of July. I do not be- doubtedly transmitted from par-

lieve in what is termed by some ents to children but does not

writers "emotional insanity" or necessarily follow except from

"moral insanity." "Klepto- some profound physical disturb-

mania" is simply thieving, "dip- ance.
somania" drunkenness and "py-

JoMuary 4-

Guiteau. This is a good time to make a speech, but I promised*
the Marshal I would keep quiet today and I will try and do it.

Mr. Scoville asked permission to call other experts. The prosecu-
tion objected.

Judge Cox granted the leave asked.

Guiteau. That is a sound decision and worthy of your Honor.
I would not give a snap for the testimony of these experts one way
or another. It is simply a question of dollars and cents with them.
You could get twenty of them to swear that I was square as a rule
on the 2d of July, when I did the act; while the fact is that I
would not do it now for a million of dollars.

Dr. George M. Beard and Guiteau. They know they

George W. McElfresh were called have got* no case. Dismiss the

but the Court ruled that the indictment and let us go home,

questions asked were not rele- I want to go home,
vant.

Mr. Scoville. I desire to make a proposition to the prosecution.
There have been numerous experts examined on both sides testify-
ing contradiction to each other. Drs. Godding, Nichols and Walker
have been present throughout the trial, though not summoned by
either side. I propose that the Court should call these three
gentlemen to the stand and question them. Neither the defense
or the prosecution would ask a question. Let their testimony go
to the jury without note or comment and let the jury decide upon
it. These gentlemen were not paid to come here.

Guiteau. They are beyond Corkhill's money and that is what
you cannot say about some of these men. They give an opinion
for $50 or $5,000.

The District Attorney declined the proposition.

CHARLES J. GTJITEATJ.

101

Ouiteau. You are in great haste to close now that your testi-
mony is all in. All I want is fair and square surrebuttal. If you
will come like men and submit it without argument I'. give you
notice now to do it. ' * •*

to let the witness go but you are
a jackass on the question p.f
cross-examination. I felt light-
hearted and merry when I got
into that cell — a mountain lifted
off me. Everybody was happy
except a few cranks, for it
united the party. Mr. Garfield
did not die, but the Lord wanted
him and He removed him gently
and gracefully. Let me alone or
I will slap your mouth. I will
talk when I feel like it.

Mr. Scoville then read letter
written in 1875, by L. W. Gui-
teau to Mrs. Scoville, which said
that the prisoner had been at
Freeport, endeavoring to borrow
$25,000 to aid in his Inter-Ocean
project: "To my mind he is a
fit subject for a lunatic asylum
and if I had the means to keep
him, I would send him to one
for a while at least."

Quiteau. Is your object in
reading that letter, Scoville, to
show that my father was a
crank or that I was? You are
a crank. That is my opinion of
you. You have no more wit
than a ten-year-old schoolboy.

January 7-9.

Judge Cox said that it was the custom here to settle questions
of law before the arguments to the jury.

Mr. Davidge read the instructions asked by the prosecution: 1.
The legal test of responsibility is whether the accused at the time
knew what he was doing and that what he was doing was contrary
to the law of the land.

2. If this constitutes no defense, he believed that he was pro-
ducing a public benefit or carying out an inspiration of Divine
origin or approval or that be was impelled by a depraved moral
sense, whether innate or acquired or by evil passion or indifference
to moral obligation.

James J. Brooks. Am chief
of the secret service of the
Treasury. Visited prisoner with
my son and Mr. Rathbone in his
cell at midnight, July 2nd. He
said he was a Stalwart; that his
act was a political necessity.
Told him we were about to ar-
rest two or three people and he
responded: "Don't do it, you
will arrest innocent people. Next
day he said he had thought and
prayed over this for six weeks.
I told him that the President
was suffering terribly. He said:
"I am very soYry. I wish I had
given him a third bullet and put
him out of his misery."

The Prisoner. It is proper
for me to say that Mr. Brooks
has stated the conversation that
occurred between us very cor-
rectly. He said that the people
were against me and I said that
the Deity was with me. I don't
want this officer hanging around
me. He is a nuisance in this
case. I talk to 50,000,000 people.
What are you? You are nothing.
Don't spoil it by cross-examina-
tion as you spoil everything.
You ought to have sense enough

102 XIV- AMERICAN STATE TRIALS.

3. The claim of the accused that his free agency was destroyed
by his conviction that the death of the President was required for
the good of the American people and was Divinely inspired, even
if it reaiiy existed, could not afford any excuse when he knew what
he "was doing and that it was contrary to law. To have such effect
the act must have been the result of an insane delusion which
was the product of disease, and of such force as to deprive the
accused of the degree of reason necessary to distinguish between
right and wrong in respect of the act.

Mr. Scoville asked instructions based on insane delusions and
irresistible impulse; also that the death having been in New Jersey
no crime had been committed here except an assault.

The Counsel on both sides argued the questions of insanity and
jurisdiction at length.

Judge Cox accepted the theory of the prosecution as to insanity
and said he would so instruct the jury and ruled that the juris-
diction was complete where the fatal wound was inflicted and
therefore the place of death was immaterial.

(During the arguments there were frequent interruptions by the
prisoner.)

The Prisoner. I didn't know the difference, sir, between right
and wrong. I had no choice. If I had had I would not have
done it. The Lord knows it and the American people are beginning
to know it. God's law is better than man's law. In that Coleman
case the jury went directly against that charge. There is plenty
of law on the other side.

Mr. Davidge. Listen to him and see what a farce has been acted
here for these many weeks. He not only knows the difference
between right and wrong but he knows the law of the case.

The Prisoner. I do not pretend to be any more insane than
yourself, and I have not been insane since the 2d of July. It was
transitory mania that I had, and that is all the insanity that I
claim.

Mr. Davidge. He knows the principles of law applicable to the
case as accurately as any lawyer.

The Prisoner. I do not pretend that I do not. My head is as
good as yours or as Porter's I am no fool. The Lord does not
employ fools to do His work.

Mr. Davidge. Mr. Scoville has said that this man was a fool for
three weeks.

The Prisoner. Scoville is a fool himself. I repudiate entirely
Scoville's theory of the defense. I do not even want him to address
that jury. I will do that business myself. Two hours' speech to
the jury will settle the question.

Judge Cox. Keep silence now and let the argument go on.

The Prisoner. That is all right, your Honor, but I repudiate the
idea that I am insane. I never claimed that I was insane. I
say that it was God's act, and that He has taken care of it and
will take care of it. If you get the Deity down on you He will

CHARLES J. GUITEAU. 103

stick to you all your days, in this world and in the next. I notify
you now. You ought to be ashamed of yourself, Davidge, for selling
yourself for a little filthy lucre. God Almighty will curse you
prosecuting men. That is the opinion of the American press, too.
I want to get a chance at that jury for two hours' talk.

Mr. Porter. When the prisoner swore on the witness stand under
the solemnity of an oath* that he believed he was predestined to
remove the President he omitted to add the further fact that he
was predistined by the same power to be hanged for it.

The Prisoner. We haven't got to that point yet, sir. It is not
likely we shall. The Lord is fixing it, Mr. Porter.

Mr. Porter. We are traveling toward it and shall reach it all the
sooner for the interruptions.

The Prisoner. You have got mouth enough for a whole family of
Porters.

Mr. Porter. This man claims that he was inspired by God and
deluded by God into the belief that it was his duty to violate
God's law.

The Prisoner. There are thirty-eight cases of violation of that
kind in the Bible where people were ordered to kill. Some people
think I am afraid of going to the gallows. I am not. If the Lord
wants me to go I will go. Put that down. I say I am right and
the American people are saying I did right. No more of this
whining about the gallows.

THE SPEECHES TO THE JURY.

ME. DAVIDGE FOR THE PROSECUTION.

January 12.

Mr. Davidge said he did not intend to make a set speech, but
merely to aid the jury, whom he complimented for their conduct
and attention throughout the trial, in arriving at their verdict.
He then made a resume of the points claimed by the defense,
stating that there was but one single point for discussion and
consideration — the subject of insanity. He showed that the attempt
to shift the responsibility of the President's death upon the medical
attendants had been abandoned. He called the attention of the
jury to the definition of malice, and claimed that the degree of
reason necessary to make a man responsible is very limited. A
man may be styled a crank or off his balance and even partially
insane, and yet may be abundantly responsible for crime. What is the
act committed here? Murder, murder, murder by lying in wait —
what is commonly called assassination. How great a degree of
intelligence does it take to inform a man that that is wrong?
What degree of intelligence was necessary to make a lawyer know
that it was in violation of the law of the land to kill? What
degree of intelligence was necessary to make a religious man know
that the everlasting edict had gone from Almighty God, "Thou
shalt commit no murder?" He tells us when the conception came.

104 XIV. AMERICAN STATE TRIALS.

and it came in the night, for I do not think that in the sunshine
such an idea could enter the soul even of that wretch.

The Prisoner. It came when the Lord got ready for it. I was
praying about it to find out the Deity's will. If you prayed more
you would be a better man than you are.

Mr. Davidge. The first branch of the defense — that through
disease of the brain the prisoner, when he committed the crime,
was unable to appreciate the difference between right and wrong
in respect of his act. It is a mockery and it is apparent that
this defense is not only a false but a fabricated one. After review-
ing the history of the Guiteau family, he proceeded to a review
of the life and habits of the prisoner, as exhibited by the evidence.
Mr. Luther W. Guiteau, while subscribing to the views of Mr.
Noyes, simply did so as a theorist or, if I may say so, as a phi-
losopher. The father was utterly ignorant, as the degenerate son
admits, of the interior workings especially the social wickedness, of
that institution. The father looked upon it from a Bible stand-
point. The son, however, entered into the community, remained
there six years and, as I say, wallowed in its iniquities.

The Prisoner. And I say it is false. I didn't wallow. I was
just as pure as you are, and a great deal purer probably. I went
there to save my soul, not for lust. Put that down, Davidge; don't
you forget it.

Mr. Davidge. Did it not come out that he was capable of writing
lectures, however indifferent? Did it not come out that he had
insured his life as a sane man? Did it not come out that he was
a lawyer and had practiced law, had tried cases? Did it not come
out that he had written multitudinous letters? Did it not come
out that all that had gone before had been a sham and a cheat?
You know it did.

The Prisoner. Talking about brains, if you read some of the
letters I got you would think I was the greatest man of this age.

January 13.

Mr. Davidge dissected the evidence of witnesses for the defense
that the prisoner was an imbecile. Upon the stand he had shown
wonderful memory, logical reason and intellectual ability, but had
been shown to be such a monster of corruption, deceit, depravity
and wickedness that the country looked on with a shudder. The
Inter-Ocean scheme was a proof of his audacity and egotism. Dr.
Spitzka never denied the prisoner's legal responsibility, and even
his evidence brought the prisoner within the reach of law and
punishment. The two moral insanity men, neither of whom could
or would admit that he believed in a God, were permitted by the
defense to retire. In answer to the prisoner's claim of Divine
inspiration he read the first chapter of the Epistle of James, 13th
to 15th verses. The true explanation of the crime was to be found
in the traits which had been developed of inordinate vanity, desire
of notoriety and reckless egotism. I told you in the beginning that

CHARLES J. GUITEAU. 105

I did not come here to make a set speech. I told you that I came
here to help as far as I could (and to help honestly) a jury of
my country in the discharge of an important and solemn duty. I
began my remarks without an exordium, and I close them without
peroration, except to say to you that your countrymen and Christen-
dom are waiting for your verdict.

The Prisoner. And I thank you, Mr. Davidge. That is a very
light speech. I hope Porter will go light, too. You had better see
General Arthur, Mr. Porter, before you begin to talk. I wrote him
a note on this matter the other day. In justice to this Court,
myself and Mr. Davidge, I wish to say that I withdraw what I said
yesterday. I received a letter denouncing Mr. Davidge and I
thought it was true. Upon inquiry I find that Mr. Davidge is a
high-toned Christian lawyer, and I withdraw all remarks I made
injurious to him. I haven't changed my opinion about Corkhill,
however. I am light on Davidge and strong on Corkhill.

January 14.

The Prisoner. I signed twenty-five checks yesterday — at least
checks payable to my order — representing about $15,000. I suppose
some of these checks are good. I do not wish anyone to send me
checks that are not good. "We have got two or three checks that
are worthless. I want people to send me good checks or none.
I do my own banking and sign these checks payable to my order.

The Court said that he had been informed that the prisoner was
preparing an address to the jury. He would be loth in a capital
case to deny any prisoner an opportunity to present a proper argu-
ment in his own behalf. But he was persuaded that any address
from this prisoner would partake of the character of his former
testimony and interruptions; that it would be a rehash of his testi-
mony. No person had a right to do that. The counsel for the
defense might examine the prisoner's manuscript and, if they
thought proper, read it to the jury.

Guiteau. I wouldn't trust my case to the best lawyer alive. I
have been here in my own behalf and my speech will be published.
I have got an encomium on your Honor in that address. If I am
denied the opportunity to speak in my own behalf I will withdraw
it. You will go down with a blackened name to future ages and
I tell you so to your face.

MR. REED FOR THE PRISONER.

Mr. Reed. At the time this awful offense was committed, every-
one who read the details instinctively believed that the man must
be insane. If the spirit of the dead President could appear before
the jury, he would say to them, "Let him free, he cannot have been
sane." If the jury after returning to their room solemnly and
seriously came to the conclusion that the man was sane at the time
of his offense, they could not hesitate nor falter in saying that he
was guilty, but if they had a reasonable doubt of his sanity, it would

106 XIV. AMERICAN STATE TRIALS.

be best for the cause of free government throughout the world that
the jury should say so by their verdict. He read from the fourth
chapter of Matthew as to the healing of lunatics by the Savior, and
adjured the jury to heal this man, not hang him and put him to
death. He went over the history of the prisoner's life, and claimed
that the incident of his striking his father was the first proof of
insanity, and the raising of an axe against his sister was further
evidence of it. The letters of the prisoner at the time he left the
Oneida Community were proofs of an unsound mind.

Charlotte Corday poniarded in his bath Marat, then the chief
man of the French nation, she was guillotined in four days after-
wards. The picture of that fair French girl could be seen in the
Corcoran Art Gallery, looking through the bars of her prison,
appealing to posterity, insane. Her execution had disgraced the
name of the French nation. He referred to the cases of Lawrence
who had fired at President Jackson; Hadfield, who had fired at
George III. of England, and Oxford, who had fired at Queen Vic-
toria; in all of which cases the prisoners had been found not guilty
by reason of insanity and had been sent to insane asylums. There
is a parallel between the case of Oxford and the present case.
Oxford, like Guiteau, had bought a pistol and practised with it. He
had been deliberate, his intention had been fixed, yet he had been
acquitted. Also a similarity existing between this and the case of
Lawrence. Lawrence had been acquitted, and his case shows that
the present case was not the only one in which the prisoner had dis-
turbed the peace and quiet of the Court room.

You twelve men sitting there today on the facts and the evidence
are superior to all powers on the earth. No emperor, no potentate,
no combination of potentates, no court, no president has any right
whatever to invade you upon that question. You are superior to
all the powers of the earth on the evidence in this case. Every
man of you is a king. You and you alone are to say what the
evidence is, what witnesses shall be believed, what disbelieved and
what weight shall be given to the testimony of one witness or
another. Your consciences under your oaths to your God are to
be your only guide. The testimony of Mr. Reynolds is that of a
sneak and a spy, yet that very evidence sustains the theory of
mental derangement.

I assert that the condemnation of this man to the gallows and
his execution will be an infamy beyond description. It will be an
indelible stain upon American jurisprudence and upon American
juries.

Think of the scene: for if you condemn him to the gallows,
although not there in body you will be there in mind. I ask you
to think of the scene if such a day shall ever come. I do not
believe it ever can come under this evidence. This man on the
day of execution is brought out from his cell with the same sad,
pale face; the same weary, wandering eye. The officers gather
around him; they pinion him, binding him with cords so that his
muscles cannot struggle or quiver. They cover him with the black

CHARLES J. GUITEAU. 107

robe; they shut out the light from him and lead him to the scaffold
and he is sent into eternity.

The Prisoner. I would rather go that way than be smashed up
on a railroad as those poor fellows were last night.

Mr. Reed. A lunatic condemned to the gallows! A lunatic who,
if our Savior were on earth today, He would heal. The picture is
not overdrawn, I leave it with you. Gentlemen, I am very much
obliged to you for the attention you have given me. It has been
very careful. I only ask you in closing, pray do that which shall
not in after years bring a blush of shame to your cheeks.

Guiteau. Reed is a good fellow, but I would not give a cent a
bushel for his rubbish. If I could only have a talk with that jury
I could give them the right theory.

ME. SCOVILLE FOR THE PRISONEB.

January 16.

Mr. Scoville thanked the jury for the patience with which they
had listened to the evidence, and expressed his obligations to mem-
bers of the Bar all over the country for the generous, unasked for
assistance which they had rendered him, and which had enabled
him to present the case not wholly at a disadvantage. He appealed
to the jurors to divest their minds wholly of any preconceived
opinions on the case. He would not attempt to appeal to the senti-
ments of the jury, the gentleman who would follow him (Mr.
Porter) would attempt to influence their emotion; he would address
himself to their hearts rather than their intellects; and if the"
question was to be decided by emotion, by passion, by prejudice,
by fear, then the defendant was lost — the defendant would be
hanged. The issue was whether or not the prisoner was insane
on the 2d of July last when he shot the President. In this case
there had been a conspiracy on the part of the District Attorney,
Mr. Porter, Mr. Davidge and the expert witnesses (Drs. Hamilton,
Macdonald, Kempster, Gray and Worcester) to hang the defendant.
He also complained of the conduct of the press in prejudging the
case. I propose — if Mr. Porter shall in his closing argument falsify
the law or the evidence — to correct him then and there every time.

The Prisoner. So shall I.

Mr. Scoville. I do not propose to let Mr. Porter put his own
coloring on the facts and to distort them. If he makes a single
allegation of facts or of law that is false I shall try to prevent it.

The Prisoner. I will attend to him.

Mr. Porter. Guiteau will attend to me.

Mr. Scoville. One of their propositions was that the case must
turn on the iron rule whether the man knew the difference be-
tween right and wrong. That was not the rule here, it had been
the rule in England 250 years ago, where, if a man had sense
enough left to know more than a wild beast, he must be executed.
It had been well termed "the wild beast rule." It was not the law
of this country, except as laid down by Judge Davis, of New York.

108 XIV. AMERICAN STATE TRIALS.

The Prisoner. And Judge Davis' jury rebuked him. They had
more sense than he had.

Mr. Porter. The rebuke consisted in the jury convicting the
prisoner.

Mr. Scoville. From the prisoner's standpoint, from his diseased
view of it, the act was not wrong. It was right, and so Mr.
Davidge's proposition was not a correct proposition of law. The
inmate of an insane asylum when he attacked another inmate or
an officer of the institution, knew that he was committing a crime,
knew the difference between the right and the wrong of the act;
but nobody ever heard of one of these insane people being held to
account in a Court of Justice under this "iron rule of law.". The
prisoner might have had on the 2d of July last enough sense and
judgment to know that it would be wrong to pick up a pocketbook
which he found on a bench in tne railroad station and transfer it
to his pocket. That was not the question. If the prisoner was on
that morning overpowered by the consciousness (coming through
his diseased mind) that the Lord was requiring him to do an act
for the good of the country and to save the nation from war, then
it was the result of a diseased mind, and the act was, in the
prisoner's view of it, right.

They raked up every little act in the prisoner's life on which the
jury were asked to convict and hang this man, but there was only
one thing in his history for which he should hide his head, and
that was the crime of adultery. And even that crime was not one
which would justify the hanging of this man; and he recounted the
incident of the woman taken in adultery, and how when Christ
looked up after writing in the sand, her accusers were all gone.

As to Shaw's testimony of the oroide watch, this is another step
in the vast career of crime which leads on to the gallows. As to
the conversation in which the prisoner said he would imitate
Wilkes Booth, I believe both these witnesses perjured themselves.
Shaw wanted to bring this man to the gallows. I could honor
Mason, McGill and Jones as compared with Shaw. They were
willing to take their lives in their hands, if necessary. They were
willing, at least, to stake their personal liberty on the issue. But
Shaw sought to hang this man without assuming even the risk of
a prosecution for perjury.

The Prisoner. You had better leave him with a pshaw and let
him go — (after a pause) — Pshaw I mean. They don't see the pun,
do they?

January 17-20.

Mr. Scoville. The prisoner wishes to say a few words.

Judge Cox nodded assent.

Guiteau (reading)

I intend no disrespect to this honorable Court, I desire no contro-
versy with this honorable Court. I am satisfied with the law as
proposed by Your Honor. But I have a still broader view of the

CHARLES J. GUITEAU. 109

law which I ask your Honor to follow — to-wit, that if the jury
believe that I believed that it was right for me to remove the
President because I had special divine authority so to do, and was
forced to it by the Deity, they will acquit me on the ground of
transitory mania. Sickles, McFarland and Cole were acquitted on
the ground of transitory mania. In my speech, published yesterday
in all the leading newspapers of the country, and which I presume
Your Honor has read, I gave my reasons for asking Your Honor so
to charge. Mr. Reed made a brilliant and lawyer-like plea for the
defense, and Mr. Scoville is making a strong argument on his theory.
But neither Mr. Reed nor Mr. Scoville represents me in this defense.
I am here as my own counsel, and have been from the beginning.
No one represents me to this jury. I know my feelings and in-
spirations in removing the President, and I have set it forth in my
speech yesterday. And I ask Your Honor, in the name of justice, in
the name of the American judiciary, in the name of the American
people, to allow me to address that jury of my countrymen in a
case where my life may be at stake. If a man upon that jury has
a doubt as to his duty to acquit me my speech will probably settle
it in my favor. Therefore, in the interest of justice, it is of the
greatest importance that the jury should hear me in my defense.

Judge Cox. I will take the matter into consideration.

Mr. Scoville resumed his argument and occupied half a day in
complaints of the unfairness of the prosecution, and had some
colloquies with the opposing counsel. He reviewed the prisoner's
life from about 1859, and insisted upon a parallel between Guiteau
and his father who, he contended, was always on the border-line
of insanity, though able to attend to business. He claimed that
the failure in business and consequent lack of a steady employment
on the part of the prisoner had caused the rapid development of
insanity in his case.

He did not think the world had ever seen or would ever
see a second Guiteau. Dr. Gray was one of the conspirators
to hang the prisoner and he denounced certain politicians who were
seeking to hide their own shame behind the disgrace of this poor
prisoner and make him the scapegoat of their crimes. He de-
nounced by name President Arthur, General Grant and Mr. Conk-
ling as being morally and intelectually responsible for this crime.
He called attention to various incidents in Guiteau's life, arguing
his insanity as evidenced by the undoubted lack of something in
his mental composition possessed by other men.

Guiteau. Give them that dog story; it will cost Corkhill $200
to get it here. There has been some talk here about politics and I
desire to say a word on the subject. There are two or three cranky
newspapers in this country, to-wit: Whitelaw Reid of the New
York Tribune; Medill of the Chicago Tribune; Halstead of the
Cincinnati Commercial, and George William Curtis, the man-mil-
liner of New York. The weather has been rather cool lately and
they had better lay out under the trees and get cooled off a little.

1 1 0 XIV. AMERICAN STATE TRIALS.

They are about the only newspaper cranks in the country. They
had better join the Grant-Guiteau-Conkling and Arthur combination
and get into good company and be good Republicans.

Mr. Scoville. He reviewed the medical testimony. He first com-
mented upon the evidence by Dr. Hamilton. If the jury discovered
that that gentleman had a disposition to testify in favor of one
side or the other the fact must detract from the value of the testi-
mony. The jury could not give it as much credit as if it had been
given plainly and frankly. He was prejudiced against the defense,
for in a single answer given by him he had seventeen times used
strong adjectives which could tell against the prisoner where they
were not necessary to express his meaning. The use of these adjectives
was possibly inadvertent; but still they left the foot-tracks by means
of which the feeling of the witness could be followed and discov-
ered. Dr. Hamilton said the prisoner's head was perfectly sym-
metrical, and declared that it was not often that a compass and
rule could demonstrate that in giving his opinion a man was telling
a lie. But he would show the jury a diagram of the prisoner's
head as drawn according to rule.

He ridiculed the testimony of Dr. Kempster upon the subject of
asymmetry in heads, declaring that his representation of the shape
of the District Attorney's head was no more the shape of it than
it was the shape of a square cube. Dr. Kempster's diagram of the
prisoner's head was false, and he would, if necessary, bring the
prisoner before the jury, and by actual measurement of his head
show that Kempster lied when he said that his diagram was a
correct representation of Guiteau's head.

Quiteau. Those experts hang a man and examine his brain after-
wards. Judge Porter has been pretending to be sick for two or three
days. I hope there will be a providence that will keep him sick. He
ought to go down below quick and then call for Corkhill.

Mr. Scoville said he had discovered that Colonel Corkhill's prej-
udice against one witness arose from the fact that he had once
been sued by a servant for $3 and had been tried by him, who was
a Justice of the Peace.

The Prisoner. If Corkhill was sued for all he owes it would
take all the courts in this city to do the business.

Mr. Scoville dwelt at great length upon the symmetry of the
prisoner's head as compared with other heads and mentioned the
District Attorney's among others.

The Prisoner. Corkhill's is a swelled head.

Mr. Scovill criticised the testimony given by Dr. Gray, whom he
characterized as the big gun which the prosecution had reserved
until the close of the case, supposing that he would carry the jury
by his grand, round, well-proportioned, overwhelming declarations.
If he attempted to follow out all the evidence and take up the
witnesses in detail and point out the inconsistencies in the testi-
mony on behalf of the prosecution, he could easily detain the jury
a week longer. He would dwell no longer on the facts of the

CHARLES J. GUITEAU. ] \ \

case, but would simply mention some considerations which should
be called to their attention. Human laws were made for sane
people. Laws were enacted to reward or punish people who were
clearly of sound mind.

The Prisoner. This gives me a chance to say that the New York
Court of Appeals decided yesterday that our theory of insanity was
correct in this case. Thank you, Mr. Judge.

Mr. Scoville then argued in favor of the abolition of capital pun-
ishment. The very fact of the prisoner restraining his hand went to
prove that he was acting under delusion; for had his act been one of
depravity, as the prosecution claimed, he would not have needed
another night to allow that depravity to be developed in his heart.

The Prisoner. I never had any conception of his removal as a
murder. My mind is a perfect blank on that and always has been.

Mr. Scoville. You, gentlemen, are liable to err. No twelve men
could be collected in the United States who would not be liable to
make erroneous decisions; but when we collect twelve men after
careful questioning, fellow citizens who understand all our relations
of life and society, who know the value of property, the value of lib-
erty, the value of life; men who have had varied experience, who
have come here from the East, from the West, from over the seas, in
one common citizenship, building up, maintaining, resolved to per-
petuate these institutions, I feel more secure in the proper adminis-
tration than I would under any other mode of adjudication. We are
safe and shall be safe in the juries of our country so long as they
are honest and well intentioned. It is not requisite that you have a
high degree of intelligence; it is requisite that you have honest
hearts, cool heads and a disposition to do what is right. But above
all you should have moral courage, stability of character, moral
stamina to determine that what may come, what may be said, you
will do what is right and just toward your fellow men and in the
sight of your God. That is what I expect of you. I simply ask you
to take the evidence into consideration; I ask you never to question
yourselves as to what will be the result of your verdict in regard
to your position in society; as to whether your fellow men will
approve it or not; as to the result in any way except that you
should believe it to be just. I ask that you will render a verdict
without fear or without hope or favor of reward, and I believe,
gentlemen, that you will do it.

The District Attorney called the Court's attention to the desire
of the prisoner to address the jury. He did not intend that any
error should get into the record upon which there was any possi-
bility that a new trial should be allowed; he, on behalf of the
Government, withdrew all objection to the prisoner being heard.

January 21.

Judge Cox. You may proceed now.

Guiteau. I sit down because I can speak better, not that I am
afraid of being shot. This shooting business is getting played out.
(Reading). The prosecution pretend that I am a wicked man.

1 1 2 XIV. AMERICAN STATE TRIALS.

Mr. Scoville and Mr. Reed think I am a lunatic, and I presume you
think I am. I certainly was a lunatic on July 2d, when I fired on
the President and the American people generally, and I presume
you think I was. Can you imagine anything more insane than
my going to that depot and shooting the President of the United
States? You are here to say whether I was sane or insane at the
moment I fired that shot. You have nothing to do with my con-
dition before or since that shot was fired. You must say by your
verdict sane or insane at the moment the shot was fired. If you
have any doubt of my sanity at the moment you must give me the
benefit of that doubt and acquit me. That is, if you have any doubt
whether I fired that shot, or as the agent of the Deity. If I fired
it on my own account I was sane. If I fired it supposing myself the
agent of the Deity I was insane and you must acquit. This is the
law as given in the recent decision of the New York Court of
Appeals. It revolutionizes the old rules and is a grand step forward
in the law of insanity. It is worthy of this age of railroads, elec-
tricity and telephones, and it well comes from the progressive State
of New York. I have no hesitation in saying that it is a special
providence in my favor and I ask this Court and jury so to consider
it. Some of the best people of America think me the greatest man
of this age, and this feeling is growing. They believe in my in-
spiration and that Providence and I have really saved the nation
another war. My speech setting forth in detail my defense was
telegraphed Sunday to all the leading papers and published Monday
morning, and now I am permitted by His Honor to deliver it to
you. Only I here desire to express my indebtedness to the American
press for the able and careful way they have reported this case.
The American press is a vast engine. They generally bring down
their man when they open upon him. They opened upon me with
all their batteries last July because they did not know my motive
and inspiration. Now that this trial has developed my motive and
inspiration their bitterness has gone. Some editors are double-
headed. They curse you today and bless you tomorrow, as they
suppose that public opinion is for or against you, which shows the
low grade of their humanity. I desire to thank my brother and
sister and my counsel, Scoville and Reed, for their valuable services.
I intend to give my counsel ample fees, especially Scoville. He is
a stanch man and a hero, and I commend him to the great North-
west as a fine lawyer and a Christian gentleman. "We have differed
as to this defense. He has his theory and I have mine. I told him
to work his theory as he thought best and he has done it in a
splendid way, and I commend him for it. Considering his slight
experience as an advocate he showed himself as a man of marked
resources. In other words, you cannot tell what is in a man until
he has a chance. Some men never have a chance and go down in
obscurity. There are plenty of brains in this world. Not every man,
has a chance to develop his brain. It is brain and opportunity
under Providence that makes a great man. I return thanks to the
Marshal and his aids, to the Superintendent of Police and his force,

CHARLES J. GUITEAU. 1 1 3

to the warden of the jail and his keepers and to General Ayres and
his forces for services rendered me. I return thanks to this honor-
able Court and bright jury for their long and patient attention to
this case. I am not here as a wicked man or a lunatic. I am here
as a patriot, and my speech is as follows — I read from the New
York Herald. He then proceeded to read a rambling effusion he
had previously given to the press. In a declamatory manner he
rolled forth his sentences, holding the paper in one hand and with
the other gesticulating and emphasizing his utterances. The words,
"Rally round the flag, boys," he repeated in a sing-song tone, waving
his arm in the air above his head. "And for this I suffer in bonds
as a patriot," he quoted in an oratorical manner, and then repeating
the sentence he allowed his voice to tremble so that the words were
nearly inaudible. The trembling in his voice continued till he
spoke about his mother and declared that he had always been "a
lover of the Lord," when he broke down completely, and, applying
his handkerchief to his eyes, wiped away the tears which, naturally
or forced for the purpose of exciting sympathy, coursed down his
cheeks. However, he immediately recovered himself, and in his
usual tone of voice proceeded with his address. When he came
to his description of the attempts made upon his life by Mason
and Jones he stood up for the purpose of the more vividly pointing
out to the jury the narrow escapes which he had had. With some-
thing of pride he held up his arm and showed the rent made in
his coat by the bullet fired by Jones and made his old declaration
that it was a proof that the Lord was watching over him. A laugh
ran through the audience as the prisoner read and reread his
declaration that it would be perfectly safe for him to walk the
streets of Washington or New York. Coming down to the extracts
from his mail he read them with extreme unction, particularly a
rhyming one dated, Philadelphia, New Year's Day, 1882, which he
read in a sing-song way, which caused a laugh among the audience.
Reaching that portion of the speech where an abstract from his
address to the American people is inserted, he folded up the paper,
took off his glasses and squaring himself in his chair proceeded
to repeat the extract from memory. In doing this he assumed his
most oratorical style, modulating the tones of his voice, using both
arms to aid him in emphasizing his dramatic utterances and as far
as possible acting the extract. Coming down to his quotation from
"John Brown's Body," he threw back his head and sang a verse
from that old song, much to the amusement of the spectators. He
read from his speech: — "Put my body in the ground if you will:
that is all you can do. But thereafter comes a day of reckoning.
The mills of the gods grind slow, but they grind sure, and they
will grind to atoms every man that injures me;" and supplemented
it with the remark, "as sure as a hair of my head is injured this
nation will go down in the dust, and don't you forget it."

Among the prisoner's other remarks during the last two
days of Mr. Somerville's speech were these:

1 1 4 XIV. AMERICAN STATE TRIALS.

My wife had been unfortunate and that is no reason that fellow
should not have married her. The whole thing was a swindle. I
know she is a good woman and therefore I let her alone. She didn't
suit me exactly.

It didn't require any brains to do that business, that's the reason
I got the job.

Everyone knows that Corkhill is crazy. You are worse than him.

Corkhill is an authority on the devil, Dr. Gray is a big man with
a big mouth. I will mark him.

I pray every night of my life. If you would pray some you would
be a better man. You wouldn't be here for blood-money.

I was the only one who had Divine authority to do it. A great
many wanted to do it.

January 22.

MR. PORTER FOR THE PROSECUTION.

Ouiteau. I desire to say before Judge Porter proceeds that some
crank has signed my name to a letter in the papers this morning. I
repudiate that kind of business. I also understand that two cranks
have been arrested this morning. One of them has been laying
around here since Saturday. I wish to say that I am in charge of
this court and its officers, and if anyone attempts to do me harm
they will be shot dead on the spot. Understand that. When I get
outside I can take care of myself.

Mr. Porter said that thus far the trial had been practically
conducted by the prisoner and his counsel, Mr. Scoville.
Everybody had been arraigned, everybody denounced, every-
body interrupted and silenced at their will. He had received
notice from both of them that he was to be interrupted and
silenced now, and that he was not to be permitted to utter
anything which any of them might disapprove. His strength
was very much gone, but he believed that what he desired
to say to the jury would be said, and that what would be
said would be said in no rhetorical form. He would deal
only with the evidence. The jury had heard the evidence
amid clamor, objections, interruptions, vituperations and
blasphemy. He would say, in justice to the prisoner, that
of the three arguments which had been made by him and his
associate counsel, the one most free from objection was the
one delivered by himself. Aside from the impiousness of his
statements, it was free from the deliberate misstatements and
perversion of testimony that ran through the arguments of

CHARLES J. GUITEAU. ] | 5

his associate counsel. In the addresses of the other two counsel,
and especially of Mr. Scoville, there had been an attempt to
carry out the plan first proposed, of misrepresentation and
perversion of testimony. It was deliberate, designed, cun-
ning, done by subterfuge and indirection. "My relations to
this case are simply those imposed on me by the Government,
and most cordially accepted by me, because I believe that the
interests of public justice demands that the cold-blooded and
deliberate assassin of President Garfield shall not leave this;
dock until he is under sentence of death, that he shall leave
off the shackles he wears, only to pass to the shackles of the
murderer's cell. He, in the meantime, invokes the mercy of
that God who spares even him who spares not. He did not
spare Garfield, though he said he was a good man whom he
was transferring to Paradise; he did not spare that wife
who, by her leaning on Garfield's arm, saved his life on one
occasion. He did not spare the aged mother whom the son
so loved. He spared no one. A murderer at heart then, he
is a murderer at heart now, and he has shown it. You, gentle-
men, have witnessed the daring of this man on this trial. I
wish to know if, unshackled and assured of the mock defense
of insanity to protect him, he had held the "bull-dog"
pistol in his hand, he would not have put an end to this trial
the other day when His Honor, in his own personal views of
propriety, prohibited him from making a last speech. In
the violence of his temper he warned His Honor that he
would erase from the record he had made for the American
people, and for all time, the commendation he had bestowed
upon him, and would send his name blackened down the
course of history. Do you believe that the man who shot
the President, who dogged him at night and went to church
to murder him, would not, if he felt safe, instead of sending
His Honor's name, coupled with infamy, thundering down
the ages, have sent a cartridge into His Honor's breast?
This man, who appeals to you in tears and with such pathos,
through his counsel, for dew-fallen mercy — this man showed
his idea of mercy to others when, on one occasion, he turned

1 1 6 XIV. AMERICAN STATE TRIALS.

to you and said that that God whose name he has so often blas-
phemed, would interfere to strike down one of your number
before you should be able to convict him. This is the man
who invokes the tender and merciful consideration of his
case. A man, brutal in his instincts, inordinate in his love
of notoriety, eaten up by a thirst for money which has gnawed
at his soul like a cancer, a beggar, a hypocrite, a canter, a
swindler, a lawyer who, with many years' practice, never
won a case. Would you know why? No court, no jury,
failed to see that he was a dishonest rogue and such men
cannot win cases. A man who has left his trail in various
States ; a man who has lived on other people 's funds and ap-
propriated them to his own use, in breach of every trust; a
man who is capable of aping the manners of a gentlemen; a
man who, as a lawyer, had this notion of morality, that when
he had taken debts to collect and collected them by dunning
the debtor, held them against his client and chuckled over
the success of his scheme ; a man who sold oroide watches or
pawned them to get money through falsehood and misrepre-
sentation; a man who was capable of endeavoring to blast
the name of the woman with whom he had slept for years
and acknowledged as a virtuous wife; who was capable of
fawning himself off on Christian committees and Christian
churches as a pure and moral man, who spent six years in
fornication at the Oneida Community ; a man who afterward,
when he wished to get rid of that wife, consulted the com-
mandments of God, and read "Thou shalt not commit
adultery," and went out and committed it with a street pros-
titute. A man so void of all honor, so possessed of the spirit
of diabolism that he was capable, at the age of eighteen, of
stealing up behind his father and giving him a blow, and,
relying on the fact that he was then a stronger and larger
man than his father, exchanged blow for blow with him, and
when the old man, by a fortunate blow, drew blood from his
nose, whimpered as he whimpered the day before yesterday
and surrendered, coward, murderer at heart. He had no
"bull-dog" then, but the spirit in which he fired at Garfield

CHARLES J. GUITEAU. \ ] 7

was the spirit in which he struck his father and raised an axe
at his sister. A fiend at eighteen when he struck his father,
he was a fiend at twenty-five, and is a fiend now.
• Mr. Garfield as a soldier, a lawyer and a statesman, stood
so high that he had been elected to the Presidency by a vote
so clear and so strong that all the people said ' ' Amen. ' ' And
that was the man against whose life this prisoner had been
plotting for six weeks, plotting without malice, as he said,
plotting, with no counsel except the fiend of darkness, who had
prompted the crime. He complains that I call him an assas-
sin. I called him an assassin from the moment that he
swore he was one. You call him an assassin. The law calls
him one. I tell him that he is a murderer from the moment
he says he did commit ''so-called" murder. But his testi-
mony is, that for two weeks after he (not God) formed the
conception, he knett every night at the feet of God (with
whom he says he is now very well satisfied) and prayed to
have him work a miracle in order to find out whether, after
all, this was not an inspiration of the devil, and as He
worked no miracle he concluded that it was an inspiration
from God. This man professes to believe that the God who
spoke to Moses and the Christ who spoke to Paul in order
to replace Judas, who had been false to his trust, inspired
this murder. He tells you on his own oath that he meditated
the means, that he contrived the vindication, that he pre-
pared the papers which were to vindicate him before God
and man, that he revised his book (his inspired book) and
altered it. He purchased a pistol, practised by the river side.
Who was it that was practising — the Deity or the prisoner?
"Who fired twenty times in order to accustom himself to the
noise of the report of the pistol, to the end that it should
not stun him when he murdered the President?

As to his being restrained from the murder by the presence
of Mrs. Garfield on one occasion, and that of the two boys
on another occasion, was as false as anything else he had
said. He had been restrained by nothing but cowardice. He
knew that if he had murdered the President in his wife's

118 XIV. AMERICAN STATE TRIALS.

presence, no military force could have prevented the people
who were around tearing him limb from limb. And on the
occasion when the children were present, they had come
surrounded by their friends and domestics. Those boys,
though not strong, would on such an occasion, have felt that
their arms carried the power of the Almighty in the defense
of their murdered father. After Guiteau fired the bullet
he turned to run. Run to jail? He was careful in the
very last moment, of his own safety. He held aloft his
letter to General Sherman, asking him to summon instantly
to his protection, that military force which had not been pres-
ent to protect the murdered President. This man had ap-
pealed to the Court to give him every right, every constitu-
tional right, freedom of speech, perfect impartiality (which
would consist in making all decisions in his favor). He had
been dictating to the Judge the charge which he proposed the
Judge should make to the jury. He had shown himself averse
to sitting in the dock, which was a disparagement to a lawyer,
a theologian, a politician, a man of God, a man of prayer,
a patriot, a man whose name is to go on through all ages.

Guiteau. I am the only man who has not been benefited by the
new administration. There is Porter, with his $10,000 fee. He has
been benefited, not me. This is a good time to make that point.
Everybody else has been benefited by this move but me.

Mr. Porter. His benefit will come when the law has been
fully executed in his case ; but has he not told you again and
again that he was to be benefited, first in the advertisement
and sale of his book and second in the reward which he
was to receive after elevating Mr. Arthur to the Presidency?

The Prisoner. I have not got any reward from him and do not
expect any. I would not take a Cabinet commission today.

Mr. Porter. Counsel for the defense would not claim that
that there could be an acquittal. Why not? Because it
would shock all Christendom. So all the struggle of counsel
for the defense had been to lead one of the twelve jurors
to differ with his fellows. Mr. Reed had made it very evi-

CHARLES J. GUITEAU. 119

dent that he thought there would be one, or perhaps two,
of the jurors who would disagree with the others and Mr.
Scoville had indicated pretty plainly that he thought so too.
I do not and have not thought so from the beginning. I
know nothing of the antecedents of any of the jurors and
have heard nothing that would lead me to suppose that any
of them would not find a verdict according to the evidence.
But when these attempts are made so persistently and so
constantly, when they are circulated by telegraph, when
they appear in the newspapers and are the subject of in-
dignant comment throughout the country, I cannot ignore
them, especially when I see the last seven days of argument
addressed to the same point, of procuring a division of the
jury. If there should be such a division it would be very
unfortunate. I think it would be unfortunate for any in-
terest that I can conceive of as an honest man. How would
the case stand if there were such a division of the jury? It
would stand about thus: — Here is a man who swears he is
guilty, and here is a juror who says: "I will swear that he
is not." The prisoner calls it an assasination over his own
signature, and the juror says it is no assassination. Oath to
oath opposed. Prisoner, "guilty." Juror, "not guilty."
Prisoner, "sane," Juror, "insane." The only consequence
of that disagreement, gentlemen, would be (under the charge
which the Judge will deliver to you) to call the attention not
only of this country, but of mankind, to the only human be-
ing who is ready to stand by and shield the cowardly assassin
of the President of the United States. But what would be
accomplished by it? Is it supposed that this Government is
not strong enough to press the case to a conclusion? It
would defeat the purpose of this particular trial and it would
compel twelve other jurors to be prisoners in their turn as
you have been in yours; to be held away from their fami-
lies and business, as you have been held away from yours,
and to have so much cut out of their lives as so much has
been cut out of yours, and all this when the prisoner swears
he is guilty. I shall demonstrate that, unless this prisoner is

120 XIV. AMERICAN STATE TRIALS.

a liar unworthy of belief, he is guilty. The theory of this
defense, as presented by Mr. Scoville, was plausible and false.
He chose to embark this entire defense on a craft which the
prisoner with his own hands has scuttled. This case stands
on the single question whether on the 2d of July, 1881,
the assassin believed that he was commanded by God to
murder the President —

The Prisoner. That is all there is to it and that is what the jury
has to pass on.

Mr. Porter. You perceive it. He foresaw from the be-
ginning of this trial the weakness of his counsel's theory,
and if his counsel had had the brains of the prisoner they
would have foreseen it. And they would have concentrated
their whole power upon it. Let me suggest to you, gentle-
men, that the office of a juror is not a light office. Some one
has said (I think it originated with Bacon) that when you
come to the Anglo-Saxon race and its form of government,
the ultimate decision of all rights and all liberties is to be
found in the jury box. In yonder Capitol districts are rep-
resented, and States are represented, but not the American
people. There are in our Government only two representa-
tives of the American people. The one is the head of the
government, the President of the United States; the other is
the jury of twelve men to whom, in the last resort, all rights,
whether they be of life, liberty or property, come for pro-
tection. For that purpose and under the operation of our
law, you twelve men stand to-day as the representatives of
the American people. But, gentlemen, there are certain
questions which rise so immeasurably above minor issues,
that upon them great masses are universally agreed. This is
one of those cases. It has arrested attention because it was
a crime committed not in the secrecy of night, but under the
broad canopy of heaven and in the broad light of day; be-
cause it was a crime committed not merely against the mur-
dered victim, but against household relations, family rela-
tions, State relations, public relations, the existence and
duration of the Government itself — so far, at least, as a

CHARLES J. GUITEAU. 121

change of political administration can be wrought out by
assassination. I deny that any man can ignore the fact, that
just as all other men loathe and abhor such crimes, so should
you. This prisoner has been blatant in claiming from day
to day that the people of this country were on his side : that
he was receiving letters and telegrams and contributions ex-
pressing sympathy with him; that the newspapers which he
professed to be reading (while he was looking over the top
of them and watching the progress of the case) were con-
taining expressions in his favor. While all this has been
going on, you might very well have wondered how it was
that neither of the counsel for the defense dared to refer to
the general judgment of the City of Washington, of the
District of Columbia, of the United States, or of manhood.
For they had yet to see the first newspaper published in
America that ventured to defend this criminal. I have seen
occasional articles before the trial, and one or two since,
doubting whether he might not have been insane, but all of
them denouncing the Court, the administration of justice —
everything and everybody — because this man was not tried
and hung.

January 24.

Mr. Porter. That this man has grown worse every year
that he has lived, we all see and know. That he was a diso-
bedient child; that he was lawless and ungrateful to his
father; that he was an unkind brother; that he stung every
man who was a benefactor to his youth ; that he had inordin-
ate desire for unholy notoriety; that his vanity was bound-
less, and that his malice was still more unbounded, we all
know. All this he was in early life. And I shall now call
your attention to some of the evidences that he was growing
worse and worse, until his career culminated in cold-blodded
assassination. His life was consistent and harmonious from
the beginning. There is a self-propagating property in sin
and vice and crime, until the man becomes (not by disease,
but by culture) what Dr. Spitzka calls a moral monstrosity.

Quiteau. You are a wine bibber.

122 XIV. AMERICAN STATE TRIALS.

Mr. Porter. This Christian gentleman, this moral gentle-
man, this praying gentleman, who prays every morning before
he eats (but nobody hears) makes the suggestion that I am a
wine bibber. Perhaps I am. That reminds me of a distich
which I heard in a temperance meeting many years ago on a
church deacon, who used one of the vaults of the church for
storing his wine:

There's a spirit above, 'tis the spirit divine;
There's a spirit below, 'tis the spirit of wine;
There's a spirit above, 'tis the spirit of love;
There's a spirit below, 'tis the spirit of woe.

It is for you, gentlemen, to judge whether it was the spirit
of love or the spirit of wine that led to the murder of your
President and mine. Who was it that killed President Gar-
field?

Ghiiteau. The Doctors. The Lord allowed them to confirm my
act. They were the immediate cause of his death.

Mr. Porter. I am afraid the prisoner has not the latest
intelligence from Heaven, for he said that the inspiration left
him an hour after he killed the President. Who killed Gar-
field? The prisoner says in his testimony: "Secretary
Blaine is responsible for the murder of President Garfield."
Who else is responsible for the death of Garfield? Mrs.
Garfield : because the prisoner swears that when he saw that
honored lady leaning on her husband's arm, her presence on
that occasion saved his life, and so if she had been with him
on the 2d of July, the prisoner would not have shot Presi-
dent Garfield. Who else killed Garfield? John H. Noyes,
says the prisoner. He killed Garfield. He from whom the
prisoner stole his lecture on "The Second Advent" and on
"The Apostle Paul." Who else killed Garfield? The pris-
oner's father. That father whom he struck from behind
when he was eighteen years of age. Who else killed Garfield ?
The mother of this prisoner, who was guilty of the inordinate
atrocity of having a temporary attack of erysipelas just be-
fore he was born, and leaving him an inheritance of con-

CHARLES J. GUITEAU. 123

genital monstrosity. Who else killed Garfield? This pris-
oner's drunken and dissolute uncle Abraham who, although
he was never insane himself, transmitted insanity to the
prisoner, though he was not his father, nor his mother, nor
his grandfather, nor his grandmother. Who else killed Gar-
field? The prisoner's cousin, Abby Maynard. Who else
killed Garfield? The Chicago Convention which nominated
him for the Presidency, inspired, according to the prisoner's
statement. He says: "His nomination was an act of God,
and if he had not been nominated and elected I could not
have killed him." The prisoner claims that he was ap-
pointed by God to kill him — he, with his swindling record —
he, a liar from the beginning — he, who struck his father;
who lifted an axe against his sister, who struck his brother —
he was commissioned to correct the act of the Convention
and of the people by murdering the President. These are
the defenses put forward by this praying prisoner and by
his praying counsel, in order to divert your attention from
the fact that the man who killed Garfield sits there, and
although Garfield is dead, the prisoner speaks and has spoken
on the witness stand those words which prove him to be not
only the assassin, but the meditating, deliberate, sane and re-
sponsible assassin of the President. But that is not enough.
The press killed Garfield. The press is solemnly indicted
by the murderer and his associate counsel; indicted without
the formality of the grand jury; accused by the oath of a
murderer; found guilty by the murderer; charged with re-
sponsibility by the murderer. But fortunately he no longer
holds the "bulldog" pistol in his hands, and the press is only
to be convicted of the murder of Garfield by the bad tongue
of a murderous liar. This man slaughtered Garfield as he
would have slaughtered a calf that he wanted to eat. And
having disposed of him in that way, in comes his counsel and
charges with the crime,* those who occupy too lofty a position
to notice the vipers that said it, and who would have de-
graded the dignity of their office by noticing it. One of them
is a distinguished American Senator, who at this moment

124 XIV. AMERICAN STATE TRIALS.

(except that he was too proud and too lofty to accept the office,
would be sitting as the Chief Justice of the Supreme Court of
the United States) ; the son of a great and honored American
Jurist; a man who still young in years, has commanded
more of the attention, at home and abroad, of the admirers
of intellectual greatness, of the loftiest eloquence, and of the
greatest statesmanship than any man perhaps even of his
time; a bitter partisan; a man honest in all that he under-
takes; a man faithful to his friends, faithful to his con-
victions, even though they involve sacrifice; a man who was
capable of doing what few men are — resigning the leader-
ship of the American Senate, and to do it at the peril of his
own political destruction; a man of unstained integrity, of a
courage and fearlessness and manliness which made this with-
drawal a matter of regret even to his political adversaries.
Such a man is to-day arraigned before an American jury,
and arrainged not by the criminal, but by the criminal's de-
fender as responsible for the murder of Garfield.35

Another of those whom he arraigned is a man more honored
in the Confederate States than any American, save their own
cherished leader, General Lee; a man who is honored in the
Northern states for services rendered — first in war and after-
ward in reconciling the difficulties which grew out of the war ;
a man whose life has been without dishonor and reproach ; a
man elevated to conspicuous positions, the successor of Wash-
ington and Jefferson, Jackson and Lincoln; one who, after he
left that place was welcomed in every European and Oriental
land as one of the noblest men and purest personal characters
to be named in the history of the nineteenth century. That
man is arraigned by the lawyer of Guiteau as responsible for
the murder of General Garfield.36 More than that, we have
the President of the United States, the successor of Garfield
and Hayes and Lincoln and Jackson and Jefferson and Adams
and Washington, elevated to that position not by an assassin,
but by the voice of his countrymen. And when this creature

35 Senator Conkling, ante p. 22.

36 General Grant.

CHARLES J. GUITEAU. 125

says: "I made Arthur President;" he forgets that General
Arthur was made President by the voice of his countrymen;
by that very voice which made Garfield President. He was
made President under the constitution and the laws. This
man has said that Garfield might have died from any other
cause; that he might have trod on an orange peel, and re-
ceived an injury which might have caused his death, or that
he might have trod upon a rattlesnake whose fangs might
have pierced his heel. Was it the orange peel or the rattle-
snake that made Arthur President? Both because the prisoner
has shown himself all his life as slippery as the orange peel
and as venomous as the rattlesnake. But in one respect
meaner than the rattlesnake, for Providence has provided in
respect of that reptile that there shall be a warning at one
end, but the venom at the other. This was a rattlesnake with-
out the rattle, but not without the fangs, and when
he tells you that he made General Arthur President of the
United States, he made him President in just the same sense
in which the rattlesnake might have done it by introducing
into President Garfield's veins that venom which in eighty
days would bring him down to the grave.

In one of his waking hours on the 11th of July, the Presi-
dent asked Mrs. Susan Edson where Guiteau was. This was
while he expected to recover. He then remarked that he sup-
posed people would come to him some day with a petition to
pardon that man; and he wondered what he should do in a
personal matter of life and death. Mrs. Edson told him that
she should think he would do nothing at all and that he surely
could not pardon such a man, and the President said: "No,
I do not suppose I can. ' ' And yet Mr. Charles Reed, to whom
the American Bar is indebted for the introduction to its ranks
of the prisoner Guiteau, undertook to say that the President
regarded him as an irresponsible man.

As to Mr. Reed 's illustration as to Christ casting out devils
and healing lunatics: The Saviour made a distinction be-
tween the sick, the lunatic and those that were possessed of
devils. The claim here is, that this man was so enormously

126 XIV. AMERICAN STATE TRIALS.

wicked as to be, in the language of Dr. Spitzka, a moral mon-
strosity. He represents the class of which the Saviour spoke,
not lunatics, but possessed of the devil. A man who was pos-
sessed by the devil came to the Saviour and prayed to be de-
livered. The Saviour granted his prayer and commanded the
devil to say who he was. "My name," said the devil, "is Le-
gion." And he prayed to be allowed to go into a herd of
swine, because even devils go through a form of prayer. The
Saviour consented. What became of the swine after Legion
had entered the herd ? ' ' They rushed down a steep place into
the sea and were choked." Whether the devil that possesses
this man is or is not to be choked by the law you are to de-
termine. But the destination of diabolism such as his was
thought by the Saviour to be fitting for the swine, and the
ultimate destination even of the swine was to be choked in
the water.

Gentlemen, you have been told you were twelve kings and
emperors. Does such fulsome adulation commend itself to
your taste? If I used such language I trust that you would
scorn me. You are no more kings, gentlemen, than Messrs.
Scoville and Eeed are kings. The purpose was to lead you to
suppose that you can override the judge and the law; that
you are at liberty to override the instructions of the Court,
and to find your verdict, or refuse to find it, on the ground
of speculative doubts not warranted by the evidence, but based
on your own view of the prisoner, or on evidence which has
not been submitted.

In the prisoner's desire for notoriety he has made himself
illustrious by having his hand stained by illustrious blood.
That man undertook to award immortality to the jury or im-
mortality to the Judge, and he had through his counsel told
them that their names would go down blackened, unless they
violated their oaths, and that his (Mr. Porter's) name was
to go down blackened unless he came to the rescue of the pris-
oner. He tells you that even the President and the great men
of the country must take heed; that even God Almighty must
take heed how he acts towards him. He tells you that, at all

CHARLES J. GUITEAU. 127

events, he is satisfied so far with what the Almighty has done,
and that he expects before the trial is done, that if it is neces-
sary the Almighty will take one of you, gentlemen, or will
take me, or will take each one of us, rather than that he shall
be struck down. The drama is well played, gentlemen. This
man is an actor. While in jail he has borne his natural part,
but here he has been constantly on the stage posing for you
and carrying out the suggestions of his counsel. Although he
has sworn to you repeatedly that he was prepared to meet
his God, there is not a soul in this vast assemblage who shrinks
with such abject cowardice from confronting the Deity.

What household would be safe, what church would pro-
tect its worshipers, if this man were to escape on the plea of
irresponsibility ? Is it true that any man who has had an in-
sane cousin, an insane uncle, an insane aunt, or an insane
ancestor, and who is not himself insane, but knows perfectly
that murder is legally and morally wrong, is to escape pun-
ishment? May he stab, or shoot, or waylay, or murder in
any form by day or by night, and then claim in his vindica-
tion, not that he is insane himself, but that somebody else was ?
If so what is human life worth? Nay, more, if it were true
that every insane man, no matter in what degree, no matter
whether from melancholia, or from any of those casual or oc-
casional aberrations of mind, is at liberty to commit burglary,
to fire your dwelling house, to set the City of Washington on
fire, when the frost shall stiffen the water, and when fire is
destruction, to ravish your daughters, what security is there ?
That is the license for which this brother-in-law of Guiteau
contends — namely, that the law is intended only for rational
men — and that all of these crimes which I have mentioned
may be committed by a license, not from the law, but from
one of twelve emperors or kings in defiance of the law and of
the instructions from the Court. Nay, more. The insane of
this country (I mean the undoubted insane, who are inmates
of lunatic asylums) are to learn from the verdict in this case,
if the theory of the defense shall be sustained, that each of
them is at liberty to murder the keeper who restrains him;

128 XIV. AMERICAN STATE TRIALS.

that they are all at liberty to confederate to open the gates
of the asylums and to go out, knife and torch in hand, and
spread ruin and conflagration in every direction, and although
the law forbids it, an American jury can be found that will
sanction the act.

More than that, any man who has insanity in any degree
shall be at liberty to murder any other insane man. In the
mercy of a good and kind Providence none of us has, as yet,
been put in a lunatic asylum, yet there is not a human being
in this vast assemblage who is not exposed to this calamity.
And then every one of the five hundred or thousand lunatics
in the asylum will be at liberty to take our lives. If such
were the law, gentlemen, the most benign institution in the
country — the institution of asylums for the insane — must be
abandoned. Let the lunatics understand that the law has no
hold upon them and that they can commit murder with im-
punity, and no order of General Sherman, no troops that
may be sent to guard an asylum can save the lives of inmates
or keepers. And hence it is (as I am glad to learn), that
while this case may well produce horror outside of lunatic
asylums, it produces more horror inside of them. I believe
that if a jury could be empanelled in any lunatic asylum in
this country, they would say of this man not only that they
would be endangered by his presence, but that he is perfectly
sane. There is one other witness who better than all else
ought to know whether he was sane or insane. That is the
woman who loved him.

Grant, for the purpose of the argument — what not one soul
of you believes — that his father was insane. His father did not
assassinate Garfield. Grant, if you please, that his uncle Abra-
ham was insane. His Uncle Abraham is not on trial. He did
not murder President Garfield. Grant the same of each and all
of these relatives, none of them murdered the President. I
aver (what this proof indisputably established) that he never
was insane, and certainly not on the 2d of July. On that point
the principal claim by the prisoner and his counsel is the
atrocity of this particular act. I do not deny his claim of

CHARLES J. GUITEAU. 129

being the most cold-blooded and savage murderer of the last
6,000 years. But he is not alone, as he will find when he comes
to those realms where murderers are consigned. The first
born of the human race murdered the second born, and the
blood of the second born called from the ground. Though
the corpse was mute the blood spoke and the murderer was
condemned to live (then a more terrible punishment than
death) with a mark upon his brow. Murder has existed in all
ages. Four thousand years ago there were inscribed on tables
of stone the command to all people : ' ' Thou shalt not kill. ' '
But Guiteau says that life is of small consideration. He says
in one of his letters of consolation to the widow: "Life is but
a fleeting dream. His death might have happened at any
time. " As he said, Mr. Garfield might have trod on an orange
peel or trod on a rattlesnake. But the Lawgiver of the uni-
verse entertained different views on the value of human life
when he said: "Whoso sheddeth man's blood by man shall
his blood be shed. ' '

Guiteau. That was said 4,000 years ago; that is old.

Mr. Porter. And that man in the dock tells you that the
same God that placed that value on human life, placed no
value on the life of James A. Garfield, and that as to that life
it was but of small value — it was "a fleeting dream." We
have had the gospel of Guiteau and he thinks that this jury
will endorse his gospel. I do not deny that there are hered-
itary tendencies to insanity. There is one order of insanity
called by this prisoner Abrahamic, called by him at other
times temporary mania, and called by Dr. Spitzka moral in-
sanity. That moral insanity, according to Dr. Barker, con-
sists in wickedness, and is inherited, not from a natural par-
ent, but from another source. Christ speaking to the Scribes
and Pharisees, said: "Ye who claim to be of the seed of
Abraham prove it by doing acts of Abraham; but ye are the
children of your father the devil, who was a murderer from
the beginning. ' ' That is the insanity which this man has in-
herited. The man is a liar as well as an assassin and he was
instigated not by the Almighty, but by the devil.

130 XIV. AMERICAN STATE TRIALS.

Judge Porter reviewed the prisoner's life of crime, in which
he included adultery; he referred to his life in Washington,
living at first-class boarding-houses at the expense of the keep-
ers of the house ; punctual at breakfast, at dinner and at tea ;
careful to take baths, punctual at night, sleeping well, eating
heartily, rising early, and spending the day at Lafayette
Square, or in making preparations to murder the President
when he should have a favorable opportunity. Was this tem-
porary mania, Abrahamic mania, or disease of the brain,
which resulted in murder for the benefit of the stalwarts of
the Republican party? Gentlemen, if I went no further, do
you believe that this man 's brain was diseased ? And did the
disease come and go according to whether President Garfield
went out alone, or went out with his wife, or went out with his
children, or went to the Soldiers' Home, or went to the rail-
road depot ? Do you believe that the right remedy for a dis-
ease of the brain is to make six weeks' preparation for an
assassination, and that shooting another man through the
spine is a cure for the disease? That is the case as the pris-
oner makes it out.

And his own sister, the only one who has stuck by him
faithfully and honestly, tells you that the first time she
thought him insane was when he was thirty-five years of age,
and had no thought before that he was not in his right mind.

January 25.
Dr. North came here to swear this case through by fixing
upon his benefactor, Luther W. Guiteau, the guilt of this
murder in transmitting his own blood to his son. If this
man were innocent now, he was guilty then, for he was ani-
mated by the spirit of murder when he struck his father, tak-
ing him at a disadvantage and fighting him in the spirit of
a devil. In his turbulent passion and egotism and wrath and
hate of all mankind he turned, in his spirit of selfishness, his
hand upon his honored father, and provoked that father to
a fight from which he retreated with the ignominy of the
coward, as — like a coward — he shot the President in the back.
The prisoner's brother, when the prisoner was forty years of

CHARLES J. GUITEAU. 131

age, when he had murdered Garfield, and when Garfield was
dead, from the circumstances and from his antecedent knowl-
edge of the prisoner, said that the prisoner was sane and re-
sponsible. All that had changed that opinion was the acting
of the prisoner himself and the production of a letter from
the father which he regarded as evidence of insanity, but
which I regard as evidence of depravity. The jury would
recollect that this was a witness who had stood by the pris-
oner with the fidelity of a brother, — who, though wronged,
had come here and was ready to contribute from his means,
from his energy, from his exertion, from all that he could to
save this man's life, and yet he had been compelled to utter
this truth before the jury. I believe John W. Guiteau to be
an honest man ; feeling naturally the bias which inclines one
to save a brother's life and to save his father's name from
infamy.

The prisoner excused his conduct because he had been imi-
tating the course of Jesus Christ and St. Paul, in going about
from town to town and from city to city, traveling from State
to State, swindling women as well as inn-keepers, and then
said that he had paid the debt because he had acknowledged
it, and that it should be charged over to the Lord. Instead
of Paul swindling and defrauding while engaged in the mis-
sion of his divine Master, he worked at his trade as a tent
maker and paid his way. He swindled no Jew, he passed no
mock gold watches off as real gold ones. He lived as we are
told in his own hired house, and while there were so many
opposed to Paul no living being except the assassin of Gar-
field has charged that he could not pay his rent.

Do you doubt that when under your verdict the sen-
tence of the law shall come to be pronounced we shall
hear again and again the same language of menace and of
hate, and that if he had the pistol with which he aimed at
Garfield, in his hand, he would if he dared, send the car-
tridge home? If he had loved his neighbor, Garfield, as he
loved himself — what think you? Would it have been his
opinion that this inspiration was of the devil or of God? If

132 XIV- AMERICAN STATE TRIALS.

he had loved his neighbor as himself how many of his swin-
dled victims would there be in this broad land? Do you
believe that He who knows all things really selected the pris-
oner as the successor of Paul and the junior member of the
firm of Jesus Christ & Co., to write a sequel to the Bible and
to illustrate the Golden Eule by lying in wait to murder?

There is an insulting reflection on one of our witnesses
as a Jew. It is no dishonor to any man to be the countryman
of the Redeemer of mankind, or to be of the seed of those
prophets whose names have come down to us in honor and
whom we all agree in holding as the messengers of God. To
be one of that Hebrew lineage is no disgrace. The one who
sings from week to week in the church the songs of David
of Israel, the one who consults the wisdom of Solomon, the
man who honors the name of Saul, the one who professes to
reverence — as this man does — Abraham, the progenitor of
Christianity.

Dr. Kiernan declared that one person out of every five
is more or less insane. Whether I am one of these unfortunate
of five I do not know. I do not think however, that Dr. Kier-
nan would have any difficulty in sending me to a lunatic asy-
lum for believing that this man and not Mr. Corkhill killed
the President. I presume that Dr. Kiernan shares the feeling
of the counsel for the defense that the man who killed the
President is the man who is now personating the prisoner, and
that I and Mr. Davidge stood by him with our hands upon
our hip pockets ready to shield him after he had shot the
President in the back. I wonder whether if Lucifer happened
to be on trial Dr. Spitzka would say of him that he was a
moral imbecile, a moral monstrosity. When Satan fell, if we
may believe the book of inspiration, he fell from where?
From the Empyrean heights, and he sank into the depths from
which come those temptations that lead men to crime, and
doom them to punishment here and hereafter. But there was
a change in Satan. Dr. Spitzka thinks there never was a
change in this man. He was a moral imbecile — that is, wicked
from the beginning.

CHARLES J. GUITEAU. 133

The world had lived since the year of the French Revolu-
tion in ignorance of the fact that the beautiful Charlotte
Corday was insane. It was left to Mr. Eeed to announce that
fact. She cannot turn in her grave to belie it, but there are
some of us who know something of the history of that won-
derful woman's true patriotism which led to an assassination
that was justified if ever an assassination was justified. She
was no sneaking coward. She left the house in which she was
reared to deliver France, to stay the hand of revolutionary
slaughter ; to lay her own head beneath the guillotine in order
to save the effusion of blood. She believed it to be her duty
to the France she loved, and she made her way with deliberate
preparation, sane in mind and devoted in purpose, ready to
die that others might live, and she succeeded in finding her
way to the man who had in his right hand the lives of mil-
lions of Frenchmen, and who by jotting a mark of blood op-
posite the name could hurry men into a dismal, dark dungeon,
from which there was no escape except through the guillotine.
She devoted herself to the work not after providing for her
own safety ; not with the idea of securing rewards from others.
This prisoner and his counsel made the discovery at the Cor-
coran Art Gallery that Charlotte Corday, who will live im-
mortal in history as one ready to give her own life for her
country, was insane and would place this murderer by the
side of that girl who gave her life that others might live.
When she was called to execution she rose from her knees
with a crucifix clasped to her breast. While I have a strong
conviction that Wilkes Booth was a perfectly sane man, still
there were in his case circumstances that tended to mitigate
in some degree the horror we feel at his crime. He was a man
wholly devoted to the cause which had failed ; who looked and
rightly looked on Abraham Lincoln — his constancy, his wis-
dom, his devotion, his patriotism — as the bar which had pre-
vented the Southern States from achieving their independ-
ence. Booth had been a play actor. He had been among
many temptations. The hate of that bloody war had not
passed away. He was eaten, up by the love of notoriety which

134 XIV- AMERICAN STATE TRIALS.

has led to so many crimes. He had an idea of patriotism and
he became infatuated — not insanely, but wildly — with the idea
that he would render a service to that portion of the country
with which he had cast his fortune if he did the act. Of
course neither you nor I justify the act. It was justified
neither by the Confederate army nor by the people of the
Confederate States. It was justified by no man North or
South; but I cannot say that I have not now some degree of
commiseration for the brilliant life so unfortunately ended
and bound to eternal infamy by an act which I readily be-
lieve was in some degree at least, influenced by a feeling of
misguided patriotism.

The Prisoner. That is a lie and you know it. Booth killed
Lincoln from revenge and I shot Garfield from patriotism. I shot
my man in broad daylight.

But what is this case? Are there in it any of the mitigat-
ing circumstances that attach even to the memory of the mur-
derer of Lincoln? No. True, Booth shot from behind, but
he felt that he was putting his life in peril for he was in a
crowded audience, and yet with the instincts of manhood and
believing or feeling that he might be justified by his country-
men, he leaped upon the stage, mounted his horse and rode
for life or for death — he rode to death — and within the blaz-
ing flames of the building in which he was penned, as God
pens murderers, he still presented the lion front of a brave
man, and although crippled in body he died like a stag at
bay. But this man, this coward, this disappointed office
seeker, this malignant, diabolical, crafty, calculating, cold-
blooded murderer, providing for death to his victim and for
safety to himself — would you compare him with Wilkes
Booth? This man has told you of the preparations he made
for murder. He had been making them for years. It was a
contingency which he had in view years before, while he was
in New York in desperate circumstances. He read the popu-
lar literature of the day, and nursed in himself that very
love of notoriety which he commended in Wilkes Booth. He
had contemplated such a murder as one of his many brilliant

CHARLES J. GUITEAU. 135

conceptions. My attention has been called to a dialogue in
one of Ouida's novels, which illustrates the topic I am dis-
cussing. The famous John Wilkes had been mentioned as the
ugliest man in Europe, and one of the parties to the dialogue
said: "Let me be the ugliest nian in Europe rather than to
remain in mediocrity. There is not a hair breadth's differ-
ence between notoriety and fame. Let me be celebrated for
something. If you cannot leap into a pit like Curtius, pop
yourself into a volcano. Folly is immortal just as much as
heroism. The world talks of you and that is all you want.
If I could not be Alexander, I would be Diogenes. If I were
not a great hero I would be a most ingenious murderer."
This love of notoriety has pursued this man from the begin-
ning. He never earned an honest penny.

This man has been all his life craving money. You cannot
find two letters of his in this book in which mention is not
made of money. His clamors from the dock have been all
money! money! money! According to him the witnesses are
swearing for money, the Government is prosecuting for
money. He says: "I would not have killed President Gar-
field as I feel now, for a million dollars." You have heard
that over, over and over again until nauseation. He is ' ' The
Honorable Charles J. Guiteau, the Little Giant of the West. ' '
He was always glorifying himself. He has been endeavoring
to persuade you that Providence wrought miracles in his
favor, and the only reason why, when the Stonington and
Narragansett came in collision, Providence saved the lives of
those on board was because this traveling book-peddler and
lecturer was on board. That he thinks was one of the cases
of special Providence. The leading spirit of the man has been
— first, greed of money and the greed of reputation. When
Horace Greeley was a candidate for the Presidency this man
was at his heels, an applicant for the mission to Chili. If
Mr. Greeley had been elected and the Chilian mission had
been refused to this man he would have got a Bulldog pistol
and sent a cartridge into the back of Horace Greeley.

Every one of the thirteen experts has sworn on personal

136 XTV. AMERICAN STATE TRIALS.

examination, that the prisoner never was insane, and three of
them were witnesses who had come under subpoena from the
defense, believing from public rumor that he was insane.
They examined him, came to the conclusion that he was sane,
and notified the counsel for the defense that they should so
swear. Men of European reputation all swore that there was
no disease of the brain in this man, no insanity, but that he
was as sane as any of us.

Mr. Porter quoted from some scenes in ' ' Othello, ' ' between
Iago and Roderigo, in order to show that the prisoner had
found in Shakespeare the idea of softening down the name of
murder into ' ' removal. ' '

He read one of the prisoner's exclamations: "I repudiate
the theory of Mr. Scoville. I am not insane now, and I never
pretended that I was." Almost every sentence that was ut-
tered by Mr. Porter was retorted to by the prisoner, until
finally he closed his argument as follows: Gentlemen, the
time has come when I must close. The Government has pre-
sented the case before you, and we have endeavored to dis-
charge our duty to the best of our abilities. His Honor has
endeavored to discharge his. I know that you will be faithful
to your oaths and discharge yours. So discharge it that, by
your actions at least, political assassination shall find no
sanction to make it a precedent hereafter. He who has or-
dained that human life shall be shielded by human law, from
human crime, presides over your deliberations, and the verdict
which shall be given or withheld to-day will be recorded where
we all have to appear. I trust that that verdict will be
prompt, that it will represent the majesty of the law, your
integrity and the honor of the country; and that this trial
which has so deeply interested all the nations of the earth
may result in a warning — to reach all lands — that political
murder shall not be used as a means of promoting party ends
or political revolutions. I trust also that the time shall come
in consequence of the attention that shall be called to the con-
siderations growing out of this trial, when by an international
arrangement between the various governments the law shall

CHARLES J. GUITEAU. 137

be so strengthened that political assassins shall find no refuge
on the face of the earth.

THE CHARGE TO THE JURY.

Judge Cox (after telling the jury to disregard the statements of
the prisoner that public opinion was with him and instructing them
as to the elements of murder, the burden of proof and the presump-
tion of innocence). The defense of insanity has been so abused as
to be brought into great discredit. It has been the last resort in
cases of unquestionable guilt, and has been the excuse to juries for
acquittal, when their own and the public sympathy have been with
the accused, and especially when the provocation to homicide has
excused it according to public sentiment, but not according to law.
For these reasons, it is viewed with suspicion and disfavor, when-
ever public sentiment is hostile to the accused. Nevertheless, if
insanity be established to the degree that has been already, in part,
and will hereafter further be explained, it is a perfect defense to
an indictment for murder, and must be allowed full weight.

Now, it is first to be observed that we are not troubled in this case
with any question about what may be called total insanity, such as
raving mania, or absolute imbecility, in which all exercise of reason
is wanting, and there is no recognition of persons or things, or their
relations.

But there is a debatable border-line between the sane and the
insane, and there is often great difficulty in determining on which
side of it a party is to be placed. There are cases in which a man's
mental faculties generaly seem to be in full vigor, but on some one
subject he seems to be deranged. He is possessed, perhaps with a
belief which everyone recognizes as absurd, which he has not rea-
soned himself into, and cannot be reasoned out of, which we call an
insane delusion, or he has, in addition, some morbid propensity,
seemingly in harsh discord with the rest of his intellectual and
moral nature.

These are cases of what, for want of a better form, is called
partial insanity. Sometimes its existence, and at other times its
limits, are doubtful and undefinable. And it is in these cases that
the difficulty arises of determining whether the patient has passed
the line of moral or legal accountability for his actions.

You must bear in mind that a man does not become irresponsible
by the mere fact of being partially insane. Such a man does not
take leave of his passions by becoming insane, and may retain as
much control over them as in health. He may commit offenses, too,
with which his infirmity has nothing to do. He may be sane as to
his crime, understand its nature, and be governed by the same
motives in regard to it as other people; while on some other subject,
having no relation to it whatever, he may be subject to some delu-
sion. In a reported case, a defendant was convicted of cheating by
false pretences, but was not saved from punishment by his insane

138 XIV. AMERICAN STATE TRIALS.

delusion that he was the lawful son of a well-known prince. The
first thing, therefore, to be impressed upon you is, that wherever
this partial insanity is relied on as a defense, it must appear that
the crime charged was the product of the delusion, or other morbid
condition, and connected with it as effect with cause, and not the
result of sane reasoning or natural motives, which the party may be
capable of, notwithstanding his circumscribed disorder. The im-
portance of this Will be appreciated by you further on.

But, assuming that the infirmity of mind has had a direct influ-
ence in the production of crime, the difficulty is to fix the degree
and character of the disorder which, in such case, will create irre-
sponsibility in law. The outgivings of the judicial mind on this
subject have not always been entirely satisfactory or in harmony
with the conclusions of medical science. Courts have, in former
times, undertaken to lay down a law of insanity without reference
to and in ignorance of the medical aspects of the subject, when it
could only be properly dealt with through a concurrent and har-
monious treatment by the two sciences of law and medicine. They
have, therefore, adopted and again discarded one theory after another
in the effort to find some common ground where a due regard for
the security of society and humanity for the afflicted may meet.
it will be my effort to give you the results most commonly accepted
by the courts.

It may be well to say a word as to the evidence by which courts
and juries are guided in this difficult and delicate inquiry.

That subtle essence which we call "mind" defies, of course, ocular
inspection. It can only be known by its outward manifestations,
and they are found in the language and conduct of the man. By
these hio thoughts and emotions are read, and according as they
conform to the practice of people of sound mind, who form the large
majority of mankind, or contrast harshly with it, we form our
judgment as to his soundness of mind. For this reason evidence
is admissible to show conduct and language at different times and
on different ocasions, which indicate to the general mind some
morbid condition of the intellectual powers; and the more extended
the view of the person's life the safer is the judgment formed of
him. Everything relating to his physical and mental history is
relevant, because any conclusion as to his sanity must often rest
upon a large number of facts. As a part of the language and con-
duct, letters spontaneously written afford one of the best indications
of mental condition.

Evidence as to insanity in the parents and immediate relatives is
also pertinent. It is never allowed to infer insanity in the accused
from the mere fact of its existence in the ancestors. But when tes-
timony is given directly tending to prove insane conduct on the part
of the accused, this kind of proof is admissible as corroborative of
the other. And therefore it is that the defense have been allowed to
introduce evidence to you covering the whole life of the accused,
and reaching to his family antecedents.

CHARLES J. GUITEAU. 139

In a case so full of detail as this I shall deem it my duty to you to
assist you in weighing the evidence by calling your attention to par-
ticular parts of it. But I wish you distinctly to understand that it
is your province, and not mine, to decide upon the facts; and if I, at
any time, seem to express or intimate an opinion on them, which I
do not design to do, it will not be binding on you, but you mus£
draw your own conclusions from the evidence.

The instructions that have been given you import, in substance,
that the true test of criminal responsibility, where the defense of
insanity is interposed, is whether the accused had sufficient use of
his reason to understand the nature of the act with which he is
charged, and to understand that it was wrong for him to commit it;
that if this was the fact he is criminally responsible for it, whatever
peculiarities may be shown about him in other respects; whereas, if
his reason was so defective, in consequence of mental disorder, gen-
erally supposed to be caused by brain disease, that he could not
understand what he was doing, or that what he was doing was
wrong, he ought to be treated as an irresponsible person.

Now, as the law assumes every one at the outset to be sane and
responsible, the question is, what is there in this case to show the
contrary as to this defendant?

A jury is not warranted in inferring that a man is insane from
the mere fact of his committing a crime, or from the enormity of
the crime, or from the mere apparent absence of adequate motive
for it, for the law assumes that there is a bad motive — that it is
prompted by malice — if nothing else appears.

Perhaps the easiest way for you to examine into this subject is,
first, to satisfy yourselves about the condition of the prisoner's mind
for a considerable period of time before any conception of the assas-
sination entered it, and at the present time, and then to consider
what evidence exists as to a different condition at the time of the
act charged.

I shall not spend any time on the first question, because to exam-
ine it at all would require a review of evidence relating to over 20
years of the defendant's life, and this has been so exhaustively dis-
cussed by counsel that anything I could say would be a wearisome
repetition. Suffice it to say, that, on one side, this evidence is sup-
posed to show a chronic condition of insanity for many years before
the assassination; and, on the other, to show an exceptionally quick
intellect and decided power of discrimination.

You must draw your conclusions from the evidence.

Was his ordinary, permanent, chronic condition of mind such, in
consequence of disease, that he was unable to understand the nature
of his actions, or to distinguish between right and wrong in his con-
duct? Was he subject to insane delusions that destroyed his power
of so distinguishing? And did this continue down to and embrace
the act for which he is tried? If so, he was simply an irresponsible
lunatic.

Or, on the other hand, had he the ordinary intelligence of sane

140 XIV. AMERICAN STATE TRIALS.

people, so that lie could distinguish between right and wrong, as to
his own actions? If another person had committed the assassina-
tion, would he have appreciated the wickedness of it? If he had had
no special access of insanity impelling him to it, as he claims was
the case, would he have understood the character of such an act
and its wrongfulness if another person had suggested it to him? If
you can answer these questions in your own minds it may aid you
towards a conclusion as to the normal or ordinary condition of the
prisoner's mind before he thought of this act; and if you are satis-
fied that his chronic or permanent condition was that of sanity, at
least so far that he knew the character of his own actions, and
whether they were right or wrong, and was not under any perma-
nent insane delusions which destroyed his power of discriminating
between right and wrong as to them, then the only inquiry remain-
ing is whether there was any special insanity connected with this
crime; and what I shall further say will be on the assumption that
you find his general condition to have been that of sanity to the
extent I have mentioned.

On this assumption it will be seen that the reliance of the defense
is on the existence of an insane delusion in the prisoner's mind
which so perverted his reason as to incapacitate him from perceiv-
ing the difference between right and wrong as to this particular
act. 37

The subject of insane delusions, which plays an important part
in this case demands careful consideration. We find it treated,
to a limited extent, in judicial decisions, but learn more about it
from works on medical jurisprudence and expert testimony. Sane
people are said sometimes to have delusions proceeding from tem-
porary disorder and deception of the senses, and they entertain
extreme opinions which are founded upon insufficient evidence, or
result from ignorance, or they are speculations on matters beyond
the scope of human knowledge; but they are always susceptible of
being corrected and removed by evidence and argument.

But the insane delusion, according to all testimony, seems to be an
unreasoning and incorrigible belief in the existence of facts which
are either impossible absolutely, or, at least, impossible under the
circumstances of the individual. A man, with no reason for it, be-
lieves that another is attempting his life, or that he himself is the
owner of untold wealth, or that he has invented something which
will revolutionize the world, or that he is president of the United
States, or that he is God or Christ, or that he is dead, or that he is
immortal, or that he has a glass arm, or that he is pursued by ene-
mies, or that he is inspired by God to do something.

In most cases, as I understand it, the fact believed is something
affecting the senses. It may also concern the relations of the party
with others. But generally the delusion centers around himself, his
cares, sufferings, rights and wrongs. It comes and goes independ-

37 Citing McNaughten's case and Com. v. Rogers, 7 Mete. 500.

CHARLES J. GUITEAU. 141

ently of the exercise of will and reason, like the phantasms of
dreams. It is, in fact, the waking dream of the insane, in which
facts present themselves to the mind as real, just as objects do to
the distempered vision in delirium tremens.

The important thing is that an insane delusion is never the result
of reasoning and reflection. It is not generated by them and it can-
not be dispelled by them.

A man may reason himself, and be reasoned by others, into absurd
opinions, and may be persuaded into impracticable schemes and
vicious resolutions, but he cannot be reasoned or persuaded into
insanity or insane delusions.

Whenever convictions are founded on evidence, on comparison of
facts and opinions and arguments, they are not insane delusions.

The insane delusion does not relate to mere sentiments or theoriea
or abstract questions in law, politics, or religion. All these are the
subjects of opinions, which are beliefs founded on reasoning and re-
flection. These opinions are often absurd in the extreme. Men
believe in animal magnetism, spiritualism, and other like matters,
to a degree that seems unreason itself, to most other people. And
there is no absurdity in relation to religious, political and social
questions that has not its sincere supporters.

These opinions result from naturally weak or ill-trained reason-
ing powers, hasty conclusions from insufficient data, ignorance of
men and things, credulous dispositions, fraudulent imposture, and
often from perverted moral sentiments. But still, they are opinions
founded upon some kind of evidence, and liable to be changed by
better external evidence or sounder reasoning. But they are not
insane delusions.

Let me illustrate further: A man talks to you so strongly about
his intercourse with departed spirits that you suspect insanity.
You find, however, that he has witnessed singular manifestations,
that his senses have been addressed by sights and sounds, which
he has investigated, reflected on, and been unable to account for,
except as supernatural. You see, at once, that there is no insanity
here; that his reason has drawn a conclusion from evidence.

The same man, on further investigation of the phenomena that
staggered him, discovers that it is all an imposture and surrenders
his belief.

Another man, whom you know to be an affectionate father, in-
sists that the Almighty has appeared to him and commanded him
to sacrifice his child. No reasoning has convinced him of his duty
to do it, but the command is as real to him as my voice is now to
you. No reasoning or remonstrance can shake his conviction or
deter him from his purpose. This is an insane delusion, the coin-
age of a diseased brain, as seems to be generally supposed, which
defies reason and ridicule, which palsies the reason, blindfolds the
conscience, and throws into disorder all the springs of human
action.

Before asking you to apply these considerations to the facts of

142 XIV. AMERICAN STATE TRIALS.

this case let me premise one or two things. The question for you
to determine is, what was the condition of the prisoner's mind at
the time when this tragedy was enacted? If he was sufficiently
sane then to be responsible, it matters not what may have been his
condition before or after. Still, evidence is properly admitted as to
his previous and subsequent conditions, because it throws light,
prospectively and retrospectively, upon his condition at the time.
Inasmuch as these disorders are of gradual growth and indefinite
continuance, if he is shown insane shortly before or after the com-
mission of the crime, it is natural to conjecture, at least, that he
was so at the time. But all the evidence must center around the
time when the deed was done.

You have heard a good deal of evidence respecting the peculiari-
ties of the prisoner through a long period of time before this occur-
rence, and it is claimed that he was, during all that time, subject to
delusions calculated to disturb his reason and throw it from its bal-
ance. I only desire to say here that the only materiality of that
evidence is in the probability it may afford of the defendant's lia-
bality to such disorder of the mind, and the corroboration it may
yield to other evidence which may tend directly to show such dis-
order at the time of the commission of the crime.

A few more words may assist you in applying to the evidence what
I have thus stated. You are to determine whether, at the time
when the homicide was committed, the defendant was laboring
under any insane delusion prompting and impelling him to the deed.

Very naturally you look first, for any explanation of the act
which may have been made by the defendant himself at the time
or immediately before and after. You have had laid before you,
especially, several papers which were in his possession, and which
purport to assign the motives for his deed. In the address to the
American people of June 16th, which seems most fully to set forth
his views, he says: "I conceived the idea of removing the President
four weeks ago. Not a soul knew of my purpose. I conceived the
idea myself and kept it to myself. I read the newspapers carefully,
for and against the administration, and gradually the conviction
dawned on me that the President's removal icas a political neces-
sity, because he proved a traitor to the men that made him, and
thereby imperilled the life of the republic." Again:

"Ingratitude is the basest of crimes. That the President, under
the manipulation of his secretary of state, has been guilty of the
basest ingratitude to the stalwarts, admits of no denial. The ex-
pressed purpose of the President has been to crush Gen. Grant and
Senator Conkling. and thereby open the way for his renomination
in 1884. In the President's madness he has wrecked the once grand
old Republican party, and for this he dies." * * * Again:

"This is not murder. It is a political necessity. It will make
my friend Arthur President, and save the republic," etc. The other
papers are of similar tenor, as I think you will find.

CHARLES J. GTJITEAU. 143

There is evidence that, when arrested, the prisoner refused to
talk, but said that the papers would explain all.

On the night of the assassination, according to the witness James
J. Brooks, the prisoner said to him that he had thought over it and
prayed over it for weeks, and the more he thought and prayed over
it the more satisfied he was that he had to do this thing. He had
made up his mind that he had done it as a matter of duty; * * *
he made up his mind that they (the President and Mr. Blaine) were
conspiring against the liberties of the people, and that the President
must die. This is all that the evidence shows as to the prisoner's
utterances about the time of the shooting.

In addition to this you have the very important testimony of the
witness Joseph S. Reynolds as to the prisoner's statements, oral
and written, made about a fortnight after the shooting. If you
credit this testimony you find him reiterating the statements con-
tained in the other papers, but, perhaps, with more emphasis and
clearness. He is represented as saying that the situation at Albany
suggested the removal of the president, and as the factional fight be-
came more bitter, he became more decided. He knew that Arthur
would become President, and that would help Conkling, etc. If he
had not seen that the President ivas doing a great wrong to the
stalwarts, he would not have assassinated him.

In the address to the American people, then written, he says:
"I now wish to state distinctly ivhy I attempted to remove the presi-
dent. I had read the newspapers for and against the administra-
tion, very carefully, for two months, before I conceived the idea of
removing him. Gradually, as the result of reading the newspapers,
the idea settled on me that if the President was removed it would
unite the two factions of the Republican party, and thereby save
the government from going into the hands of the ex-rebels and their
northern allies. It was my own conception, and, whether right or
wrong, I take the entire responsibility." A second paper, dated
July 19th, addressed to the public, reiterates this and concludes,
"Whether he lives or dies, I have got the inspiration worked out
of me."

We have now before us everything emanating from the prisoner
about the time of the shooting and within a lttle over a fortnight
afterwards. We have nothing further from him until over three
months afterwards. Let us pause here to consider the import of all
this.

You are to consider, first, whether this evidence fairly represents
the true feelings and ideas which governed the prisoner at the time
of the shooting. If it does, it represents a state of things which I
have not seen characterized in any judicial utterance or authorita-
tive work as an insane delusion.

You are to consider whether it is so described in the evidence, or
does not, on the contrary, show a deliberate process of reasoning
and reflection, upon argument and evidence for and against, result-
ing in an opinion that the President had betrayed his party, and

144 XIV. AMERICAN STATE TRIALS.

that if he were out of the way it would be a benefit to his party and
save the country from the predominance of their political op-
ponents. So far there was nothing insane in the conclusion. It
was doubtless, shared by a great many others. But the difference
was that the prisoner, according to his revelations, went a step
further, and reached the conviction that to put the President out of
the way by assassination was a political necessity.

When men reason the law requires them to reason correctly, as
far as their practical duties are concerned. When they have the
capacity to distinguish between right and wrong they are bound to
do it. Opinions, properly so called, — i. e., beliefs resulting from
reasoning, reflection or examination of evidence, — afford no pro-
tection against the penal consequences of crime. A man may be-
lieve a course of action to be right, and the law, which forbids it*
to be wrong. Nevertheless, he must obey the law, notwithstanding
his convictions. And nothing can save him from the consequences
of its violation, except the fact that he is so crazed by disease as
to be unable to comprehend the necessity of obedience to it.

The Mormon prophets profess to be inspired and to believe in the
duty of plural marriages, although it was forbidden by a law of the
United States. One of the sect violated the law, and was indicted
for it. The judge who tried him instructed the jury — "That if the
defendant, under the influence of a religious belief that it was right
— under an inspiration, if you please, that it was right — delib-
erately married a second time, having a first wife living, the want
of consciousness of evil intent, the want of understanding that he
was committing a crime, did not excuse him." And the supreme
court of the United States, to which the case went (Reynolds v. U.
S. 98 U. S. 145), approved this ruling.

In like manner a man may reason himself into a conviction of
the expediency and patriotic character of political assassination,
but to allow him to find shelter from punishment behind that belief,
as an insane delusion, would be simply monstrous.

Between one and two centuries ago there arose a school of moral-
ists who were accused of maintaining the doctrine that whenever
an end to be attained is right, any means necessary to attain it
would be justifiable. They were accused of practicing such a pro-
cess of reasoning as would justify every sin in the decalogue when
occasion required it. They incurred the odium of nearly all Chris-
tendom in consequence. But the mode of reasoning attributed to
them would seem to be impliedly, if not expressly, reproduced in
the papers written by the defendant and shown in evidence: "It
would be a right and patriotic thing to unite the Republican party
and save the republic. Whatever means may be necessary for that
object would be justifiable. The death of the president by violence
is the only and therefore the necessary means of accomplishing it,
and therefore it is justifiable. Being justifiable as a political neces-
sity, it is not murder."

Such seems to be the substance of the ideas which he puts forth

CHARLES J. GTJITEAU. 145

to the world as his justification in these papers. If this is the
whole of his position, it presents one of those vagaries of opinion for
which the law has no toleration and which furnishes no excuse
whatever for crime.

This, however, is not all that the defendant now claims. There
is, undoubtedly, a form of insane delusion, consisting of a belief
by a person that he is inspired by the Almighty to do something —
to kill another, for example — and this delusion may be so strong
as to impel him to the commission of a crime.

The defendant, in this case, claims that he labored under such a
delusion and impulse, or pressure, as he calls it, at the time of the
assassination.

The prisoner's unsworn declarations since the assassination on
this subject, in his own favor, are, of course, not evidence, and are
not to be considered by you. A man's language, when sincere, may,
be evidence of the condition of his mind when it is uttered, but it is
not evidence in his favor of the facts declared by him, or as to his
previous acts or condition. He can never manufacture evidence in
this way in his own exoneration.

It is true that the law allows a prisoner to testify in his own be-
half, and thereby makes his sworn testimony on the witness-stand
legal evidence, to be received and considered by you, but it leaves
the weight of that evidence to be determined by you also.

I need hardly say to you that no verdict could safely be rendered
upon the evidence of the accused party only, under such circum-
stances. If it were recognized by such a verdict, that a man on
trial for his life could secure an acquittal by simply testifying him-
self, that he had committed the crime charged under a delusion, an
inspiration, an irresistible impulse, this would be to proclaim in
universal amnesty to criminals in the past, and an unbounded li-
cense for the future, and the courts of justice might as well be
closed. It must be perfectly apparent to you that the existence of
such a delusion can be best tested by the language and conduct of
the party immediately before and at the time of the act. And
while the accused party cannot make evidence for himself by his
subsequent declarations, on the other hand, he may make evidence
against himself, and when those declarations amount to admissions
against himself, they are evidence to be considered by a jury.

Let me here say a word about the characteristics of this form of
delusion. It is easy to understand that the conceit of being inspired
to do an act may be either a sane belief or an insane delusion. A
great many Christians believe, not only that events generally are
providentially ordered, but that they themselves receive special pro-
vidential guidance and illumination in reference to both their in-
ward thoughts and outward actions, and, in an undefined sense, are
inspired to pursue a certain course of action; but this is a mere
sane belief, whether well or ill founded. On the other hand, if you
were satisfied that a man sincerely, though insanely, believed that,
like Saul of Tarsus, on his way to Damascus, he had been smitten

146 XT?- AMERICAN STATE TRIALS.

to the earth, had seen a great light shining around him, had heard
a voice from heaven, warning and commanding him, and that thence-
forth, in reversal of his whole previous moral bent and mental con-
victions, he had acted upon this supposed revelation, you would
have before you a case of imaginary inspiration amounting to an
insane delusion.

The question for you to consider is, whether the case of the de-
fendant presents anything analogous to this. The theory of the
government is that the defendant committed the homicide in the
full possession of his faculties, and from perfectly sane motives;
that he did the act from revenge, or perhaps from a morbid desire
for notoriety; that he calculated deliberately upon being protected
by those who were politically benefited by the death of the Presi-
dent, and upon some ulterior benefit to himself; that he made no
pretense to inspiration at the time of the assassination, nor until
he discovered that his expectations of help from the so-called
stalwart wing of the Republican party were delusive, and that these
men were denouncing his deed, and that then, for the first time,
when he saw the necessity of making out some defense, he broached
this theory of inspiration and irresistible pressure, forcing him to
the commission of the act.

If this be true, you would have nothing to indicate the real mo-
tives of the act except what I have already considered. Whether it
is true or not, you must determine from all the evidence.

It is true that the term "inspiration" does not appear in the pa-
pers first written by the defendant, nor in those delivered to Gen.
Reynolds, except at the close of the one dated July 19th, in which he
says that the inspiration is worked out of him; though what that
means is not clear. It is true, also, that this was after, according
to Gen. Reynolds, he had been informed how he was being de-
nounced by the stalwart republicans. In one of the first papers
I have referred to, the President's removal was called an act of
God, as were his nomination and election; but whether this meant
anything more than that it was an act of God, in the sense in
which all great events are said to be ordered by Providence, is not
clear.

Finally, on this subject, you have the defendant's own testimony.
He does not profess to have had any visions or direct revelation or
distorted conception of facts. But he says that while pondering
over the political situation the idea suddenly occurred to him that
if the president were out of the way the dissensions of his party
would be healed; that he read the papers with an eye on the pos-
sibility of the President's removal, and the idea kept pressing on
him; that he was horrified; kept throwing it off; did not want to
give it attention; tried to shake it off; but it kept growing upon
him, so that at the end of two weeks his mind was thoroughly
fixed as to the necessity for the president's removal and the di-
vinity of the inspiration. He never had the slightest doubt of the
divinity of the inspiration from the first of June. He kept praying

CHARLES J. GUITEAU. 147

about it, and that if it was not the Lord's will that he should re-
move the President there would be some way by which His provi-
dence would intercept the act. He kept reading the newspapers, and
his inspiration was being confirmed every day, and since the first
day of June he has never had a doubt about the divinity of the act.
In the cross-examination he said: If the political necessity had not
existed the president would not have been removed — there would
have been no necessity for the inspiration. About the first of June
he made up his mind as to the inspiration of the act, and the neces-
sity for it; from the sixteenth of June to the second of July he
prayed that if he was wrong, the Deity would stop him by His
providence; in May it was an embryo inspiration — a mere impres-
sion that possibly it might have to be done; he was doubting
whether it was the Deity that was inspiring him, and was praying
that the Deity would not let him make a mistake about it; and
that at last it was the Deity, and not he, who killed the president.
Again, the confirmation that it was the Deity, and not the devil,
who inspired the idea of removing the President, came to him in the
fact that the newspapers were all denouncing the president. He
saw that the political situation required the removal of the presi-
dent, and that is the way he knew that his intended act was in-
spired by the Deity; but for the political situation, he would have
thought that it came from the devil. This is the substance of all
that appears in the case on the subject of inspiration.

It is proper to call your attention to some variations in the pris-
oner's statements at different times.

In two of the papers of July he says it was his own conception,
and he took the entire responsibility. In the conversations reported
by Dr. Gray, in November, he did not connect the Deity with the
inception of the act. The conception was his own, and the inspira-
tion came after he made up his mind ; but he does not explain what
he meant by the inspiration, unless it was that it was a pressure
upon him, or, as he expresses it, the duty of doing it was pressing
upon him.

In his testimony he disclaims all responsibility, while he still
speaks of the idea of removing the President as an impression which
arose in his own mind first. He says that in his reflections about it
he debated with himself whether it came from the Deity or the
devil; prayed that God would prevent it if it was not His will; and
finally made up his mind, from a consideration of the political situ-
ation, that it was inspired by Him. On all this the question for you
is, whether, on the one hand, the idea of killing the president first
presented itself to the defendant in the shape of a command or in-
spiration of the Deity, in the manner in which insane delusions of
that kind arise, of which you have heard much in the testimony;
or, on the other hand, it was* a conception of his own, followed out
to a resolution to act; and if he thought at all about inspiration, it
was simply a speculation or theory, or theoretical conclusion of his
own mind, drawn from the expediency or necessity of the act, that
his previously-conceived ideas were inspired.

148 XIV. AMERICAN STATE TRIALS.

If the latter is a correct representation of his state of mind it
would show nothing more than one of the same vagaries of reason-
ing that I have already characterized as furnishing no excuse for
crime.

Unquestionably a man may be insanely convinced that he is in-
spired by the Almighty to do an act, to a degree that will destroy
his responsibility for the act. But, on the other hand, he cannot
escape responsibility by baptizing his own sponteaneous conceptions
and reflections and deliberate resolves with the name of inspiration.

On the direct question whether the prisoner knew that he was
doing wrong at the time of the killing, the only direct testimony is
his own, to the contrary effect. One or two circumstances may be
suggested as throwing some light on the question.

The declaration that, right or wrong, he took the responsibility,
made shortly afterwards, may afford some indication whether the
question of wrong had suggested itself. And his testimony that he
was horrified when the idea of assassination first occurred to him,
and he tried to put it away, is still more pertinent. His statement,
testified to by Dr. Gray, that he was thinking of the defense of in-
spiration while the assassination was being planned, tends to show
a knowledge of the legal consequences of the killing. His present
statement, that no punishment would be too quick or severe for him
if he killed the President otherwise than as agent of the Deity,
shows a present knowledge of the wrongfulness of the act in it-
self; but this declaration is of value on this question of knowledge,
only in case you should believe that he had the same appreciation
of the act at the time of its commission and disbelieve his story
about the inspiration.

I have said nearly all that I need say on the subject of insane
delusion.

The courts have settled down upon the question of knowledge
of right and wrong as to the particular act, or rather the capacity
to know it, as the test of responsibility; and the question of insane
delusion is only important as it throws light upon the question of
knowledge of, or capacity to know, the right and wrong.

If a man is under an insane delusion that another is attempting
his life, and kills him in self-defense, he does not know that he is
committing an unnecessary homicide. If a man insanely believes
that he has a command from the Almighty to kill, it is difficult
to understand how such a man can know that it is wrong for him
to do it. A man may have some other insane delusion which would
be quite consistent with a knowledge that such an act is wrong —
such as, that be had received an injury — and he might kill in re-
venge for it knowing that it would be wrong.

And I have dwelt upon the question of insane delusion, simply
because evidence relating to that is evidence touching the defend-
ant's power, or want of.power, from mental disease, to distinguish
between right and wrong, as to the act done by him, which is the

CHARLES J. GUITEAU. 149

broad question for you to determine, and because that is the kind
of evidence on tbis question which is relied on by the defense.

It has been argued with great force, on the part of the defendant,
that there are a great many things in his conduct which could
never be expected of a sane man, and which are only explainable
on the theory of insanity. The very extravagance of his expecta-
tions in connection with this deed — that he would be protected
by the men he was to benefit, would be applauded by the whole
country when his motives were made known — has been dwelt upon
as the strongest evidence of unsoundness.

Whether this and other strange things in his career are really
indicative of partial insanity, or can be accounted for by ignorance
of men, exaggerated egotism, or perverted moral sense, might be a
question of difficulty. And difficulties of this kind you might find
very perplexing, if you were compelled to determine the question
of insanity generally, without any rule for your guidance.

But the only safe rule for you is to direct your reflections to the
one question which is the test of criminal responsibility, and which
has been so often repeated to you, viz., whether, whatever may have
been the prisoner's singularities and eccentricities, he possessed
the mental capacity, at the time the act was committed, to know
that it was wrong, or was deprived of that capacity by mental dis-
ease.

In all this matter there is one important distinction that you
must not lose sight of, and you are to decide how far it is applicable
to this case. It is the distinction between mental and moral obli-
quity; between a mental incapacity to understand the distinctions
between right and wrong, and a moral indifference and insensibility
to those distinctions. The latter results from a blunted conscience,
a torpid moral sense or depravity of heart; and sometimes we are
not inapt to mistake it for evidence of something wrong in the
mental constitution. We have probably all known men of more
than the average of mental endowments, whose whole lives have
been marked by a kind of moral obliquity and apparent absence of
the moral sense. We have known others who have first yielded to
temptation with pangs of remorse, but each transgression became
easier, until dishonesty became a confirmed habit, and at length all
sensitiveness of conscience disappeared.

When we see men of seeming intelligence and of better ante-
cedents reduced to this condition, we are prone to wonder whether
the balance-wheels of the intellect are not thrown out of gear. But
indifference to what is right is not ignorance of it, and depravity
is not insanity, and we must be careful not to mistake moral per-
version for mental disease.

Whether it is true or not that insanity is a disease of the physical
organ, the brain, it is clearly in one sense a disease, when it at-
tacks a man in his maturity. It involves a departure from his
normal and natural condition. And this is the reason why an in-
quiry into the man's previous condition is so pertinent, because it

150 XIV. AMERICAN STATE TRIALS.

tends to show whether what is called an act of insanity is the nat-
ural outgrowth of his disposition or is utterly at war with it, and
therefore indicates an unnatural change.

A man who is represented as having been always an affectionate
parent and husband, suddenly kills wife and child. This is some-
thing so unnatural for such a man that a suspicion of his insanity
arises at once. On further inquiry we learn that instead of being
as represented, the man was always passionate, violent, and brutal
in his family. We then see that the act was the probable result of
his bad passions, and not of a disordered mind.

Hence the importance of viewing the moral as well as intellectual
side of the man, in the effort to solve the question of sanity. That
evidence on this subject is proper was held by the supreme judicial
court of New Hampshire in State v. Jones, 50 N. H. It was upon
the principle enunciated in this case that evidence was received in
the present case tending to show the moral character of the ac-
cused, and offered for the purpose of showing that eccentricities
relied on as proof of unsound mind were accounted for by want of
moral principle.

From the materials that have been presented to you two pictures
have been drawn by counsel. The one represents a youth of more
than the average of mental endowments, surrounded by certain de-
moralizing influences at a time when his character was being den
veloped; starting in life without resources, but developing a vicious
sharpness and cunning; conceiving "enterprises of great pith and
moment," that indicated unusual forecast, though beyond his re-
sources; consumed all the while by insatiate vanity and craving for
notoriety; violent in temper, selfish in disposition, immoral, and
dishonest in every direction; leading a life, for years, of hypocrisy,
swindling, and fraud; and finally, as the culmination of a depraved
career, working himself into a resolution to startle the country with
a crime that would secure him a bad eminence, and, perhaps, a
future reward.

The other represents a youth born, as it were, under malign influ-
ences, the child of a diseased mother, and a father subject to re-
ligious delusions; deprived of his mother at an early age; reared
in retirement and under the influence of fanatical religious views;
subsequently, with his mind filled with fanatical theories, launched
upon the world with no guidance save his own impulses; then evinc-
ing an incapacity for any continuous occupation; changing from
one pursuit to another — now a lawyer, now a religionist, now a
politician — unsuccessful in all; full of wild impracticable schemes,
for which he had neither resources nor ability; subject to delusions
about his abilities and prospects of success, and his relations with
others; his mind incoherent and incapable of reasoning" connectedly
on any subject; withal, amiable, gentle, and not aggressive, but the
victim of surrounding influences, with a mind so weak and a tem-
perament so impressible that, under the excitement of political con-
troversy, he became frenzied and insanely deluded, and thereby

CHARLES J. GUITEAU. 151

impelled to the commission of a crime, the guilt of which he could
not, at the moment, understand.

It is for you to determine which of these is the portrait of the
accused.

Before saying a last word my attention has just been called to,
and I have been requested by counsel for the defendant to give,
certain additional instructions. One is: "It is the duty of each
juror to consider the evidence, all pertinent remarks of counsel,
and all the suggestions of fellow-jurors, but to disregard all state-
ments of counsel and declarations of the prisoner except such as
are founded upon the evidence." Of course, that is a truism, and
does not require any particular instruction.

"The testimony of the prisoner they will weigh as to credibility,
and judge of by the same rules and considerations applied to that of
other witnesses." That is all true, provided that all the influences
that governed the prisoner are duly weighed and considered.

"And after all, each juror should decide for himself upon his oath
as to what his verdict should be. No juror should yield his delib-
erate, conscientious conviction as to what the verdict should be,
either at the instance of a fellow-juror or at the instance of a ma-
jority. Above all, no juror should yield his honest convictions for
the sake of unanimity, or to avert the disaster of a mistrial. Jurors
have nothing to do with the consequences of their verdict." All
that, gentlemen, is true. Some of it is substantially embodied, I
think, in what I have already said.

And now, to sum up all that I have said, in a few words:

If you find from the whole evidence that, at the time of the com-
mission of the homicide, the prisoner, in consequence of disease of
mind, was laboring under such a defect of his reason that he was
incapable of understanding what he was doing, or that it was wrong
— as, for example, if he was under an insane delusion that the Al-
mighty had commanded him to do the act, and in consequence of
that he was incapable of seeing that it was a wrong thing to do —
then he was not in a responsible condition of mind, and was an
object of compassion, and not of justice, and ought to be now
acquitted.

On the other hand, if you find that he was under no insane delu-
sion, such as I have described, but had possession of his faculties
and the power to know that his act was wrong, and of his own free
will deliberately conceived, planned, and executed this homicide,
then, whether his motive was personal vindictiveness or political
animosity, or a desire to avenge a supposed political wrong, or a
morbid desire for notoriety, or fanciful ideas of patriotism or of the
divine will, or you are unable to discover any motive at all, the act
is simply murder, and it is your duty to find him guilty.

Now, gentlemen, retire to your rooms and consider this matter,
and make due deliberation in the case of the United States against
Guiteau,

152 XIV. AMERICAN STATE TRIALS.

THE VERDICT AND SENTENCE.

At 4:40 the Jury retired and half an hour later sent word to the
bailiff in charge that they had agreed. They came into court.

The Clerk. Have you agred upon a verdict?

The Foreman. We have. Guilty as indicted. They were then
polled, each man responding "Guilty."38

Ouiteau. My blood will be upon the heads of that jury, don't
you forget it. That is my answer. God will avenge this outrage.

The Court. Gentlemen of the jury, I cannot express too much
thanks to you, both in my own name and in the name of the public,
for the diligence and fidelity with which you have discharged your
duties; for the patience with which you have listened to this long
mass of testimony, and the lengthy discussion by counsel; and for
the patience with which you have borne with the privations and
inconveniences incident to this trial. I am sure that you will take
home with you the approval of your own consciences as you will
have that of your fellow-citizens. With thanks and good wishes, I
discharge you from any further service at this term of the court.

February 3.
The Prisoner's Counsel applied for a new trial, alleging new evi-
dence of his insanity, and that a Washington newspaper describing
the attack by Jones on the prisoner had been found in the jury
room showing that they had read the paper.39

February %.

Judge Cox overruled the motion for a new trial.

Guiteau. I ask your honor if there is anything I can do to pre-
serve my rights in banc. I expect to have to have two or three of
the best lawyers in America to represent me there.

Judge Cox. Every right shall be reserved.

The Prisoner. Do I understand it is necessary to pass sentence
now?

The Court. The sentence is passed now, but the execution of it
is deferred until after the consideration by the court in banc.

The Prisoner. Within what time will your Honor — (to Mr. Sco-
ville, who is attempting to silence him) : Keep quiet yourself; you
convicted me by your fool theory and consummate asinine conduct.
If you had kept entirely away from me I would have had the best
lawyers in America, and I could have got them in October, but you

38 There was great applause in the court room. As he was
being taken out he said to the reporters: "The Court in banc will
reverse this business." When he reached the street a great crowd
outside greeted him with jeers, hisses and groans.

39 As evidence of this a newspaper was provided with the signa-
tures of several of the jurors scribbled on it. But the jurors swore
positively to the contrary and it would seem that the signatures
were forged.

CHARLES J. GUITEAU. 153

came on the case and I didn't ask you. Your intentions are good,
but you are deficient in brains and experience. I want brains and
experience on this case and not intentions. That is my record on
you. Now I want you to let me alone and I will pull out of this.
You have got me into this trouble.

The District Attorney. The duty is now imposed upon me to ask
the Court to pass sentence in accordance with the verdict.

The Prisoner. I ask your Honor to defer that as long as you can.

The Couet. Stand up. Have you anything to say why sentence
should not be pronounced?

Ouiteau. I am not guilty of the charge set forth in the indict-
ment. It was God's act, not mine, and God will take care of it.
He will take care of it, and don't let the American people forget it.
He will take care of it and every officer of this Government from the
Executive down to that Marshal, taking in every man on the jury
and every member of this Bench will pay for it; and the American
nation will roll in blood if my body goes into the ground and I
am hung. The Jews put the despised Gallilean in the grave. For
the time they triumphed, but at the destruction of Jerusalem forty
years afterward the Almighty got even with them. I am not afraid
of death. I am here as God's man. Kill me to-morrow, if you want.
I am God's man and I have been from the start. I care not what
men shall do with me.

Judge Cox. You have been convicted of a crime so terrible in its
circumstances and so far-reaching in its results that it has drawn
upon you the horror of the whole world and the execrations of your
countrymen. The excitement produced by such an offense made it
no easy task to secure for you a fair and impartial trial, but you have
had the power of the United States Treasury and of the Government,
in your service to protect your person from violence and to procure
evidence from all parts of the country. You have had as fair and
impartial a jury as ever assembled in a court of justice. You have
been defended by counsel with a zeal and devotion that merits the
highest encomium, and I certainly have done my best to secure a
fair presentation of your defense. Notwithstanding all this you
have been found guilty. It would have been a comfort" to many
people if the verdict of the jury had established the fact that your
act was that of an irresponsible man. It would have left the people
the satisfying belief that the crime of political assassination was
something entirely foreign to the institutions and civilization of our
country, but the result has denied them that comfort. The country
will accept it as a fact that that crime can be committed, and the
Court will have to deal with it with the highest penalty known to
the criminal code to serve as an example to others. Your career
has been so extraordinary that people might well at times have
doubted your sanity. But one cannot but believe that when the
crime was committed you thoroughly understood the nature of the
crime and its consequences and had entire control of your actions.

Ouiteau. I was acting as God's man.

154 XIV. AMERICAN STATE TRIALS.

Judge Cox. And that you had moral sense and conscience enough
to recognize the moral iniquity of such an act. Your own testimony
shows that you recoiled with horror from the idea. You say that
you prayed against it. You say that you thought it might be pre-
vented. This shows that your conscience warned you against it,
but by the wretched sophistry of your own mind you worked your-
self up against the protest of your own conscience. "What motive
could have induced you to this act must be a matter of conjecture.
Probably men will think that some fanaticism or a morbid desire
for self-exaltation was the real inspiration for the act. Your own
testimony seems to controvert the theories of your counsel. They
have maintained and thought honestly, I believe, that you were
driven against your will by an insane impulse to commit the act,
but your testimony showed that you deliberately resolved to do it,
and that a guilty and misguided will was the sole impulse. This
may seem insanity to some persons, but the law looks upon it as a
willful crime. You will have due opportunity of having any errors
I may have committed during the course of the trial passed upon
by the Court in banc, but meanwhile it is necessary for me to pro-
nounce the sentence of the law — that you be taken hence to the
common jail of the District, from whence you came, and there be
kept in confinement, and on Friday, the 30th day of June, 1882, you
be taken to the place prepared for the execution, within the walls
of said jail, and there between the hours of 12 and 2 P. M., you be
hanged by the neck until you are dead, and may the Lord have
mercy on your soul.

Guiteau. And may God have mercy on your soul. I had rather
stand where I am than where that jury does, or than where your
Honor does. I am not afraid to die. Confound you (struggling
with the Deputy Marshals) leave me alone. I know where I stand
on this business. I am here as God's man and don't you forget it.
God Almighty will curse every man who has had anything to do
with this act. Nothing but good has come of General Garfield's
removal, and that will be posterity's view of it. Everybody is happy
here except a few cranks. Nothing but good has come to this na-
tion from, his removal. That is the reason the Lord wanted him
removed.

Mr. Scoville took an exception to the judgment and sentence of
the Court.

G-uiteau. I'd rather a thousand times be in my position than be
with those devils who have hounded me to death. I will have a
flight to glory, and I am not afraid to go. But Corkhill and the
others are. There is no let up on Corkhill, the scoundrel. He has
a permanent job down below. I will go to glory whenever the Lord
wants me to go, but I will probably stay down here a good many
years and get into the White House. I know how I stand on this
business and so does the Lord and He will pull me through with
the help of two or three good lawyers, and all the devils in hell
can't hurt me.

CHARLES J. GUITEAU. 155

On April 24, Mr. Scoville withdrew from the case;4° on May 9
the appeal was argued before the Supreme Court of the District of
Columbia, and on May 22 that tribunal unanimously refused a new
trial. A motion for a rehearing was overruled on June 5. An ap-
plication was made to Mr. Justice Bradley" of the United States
Supreme Court for a writ of habeas corpus which, on June 19 he
denied, holding that the Court for the District of Columbia had full
jurisdiction of the case. The last appeal was made to President
Arthur to grant a respite until a medical commission could repass
on the question of the alleged insanity of the murderer. Attorney
General Brewster^ on June 24 advised that the sentence be not
interfered with. This recommendation was unanimously approved
by the Cabinet; the President refused the respite.

THE EXECUTION.

June 30.

After a restless night, Guiteau ate a hearty breakfast at 6:30,
ordering his dinner to be brought at 11 promptly. To Rev. Dr.
Hicks, who had spent the night with him, he expressed anxiety that
some accident might occur and requested him to examine the scaf-
fold, and remarked: "My heart is tender. I don't think I can go
through this ordeal without weeping, not because of any great
weakness, for the principle in me is strong, but because I am nearer
the other world. I hold to the idea that God inspired me."

He asked that in his books all complimentary remarks about
President Arthur and his administration be eliminated. Then he
presented to Dr. Hicks the books that had been his companions.

He told Dr. Hicks that he wanted him to offer the first prayer
on the scaffold, saying he (Guiteau) would then read his favorite

4o in his letter to the Supreme Court he said: With my conviction
as to the mental infirmities of the prisoner and his consequent irre-
sponsibility, I have endeavored to and would suffer yet longer his
ingratitude and abuse, were I able to give further time and services
to his defense. The imperative cause of withdrawal is my inability,
without absolute ruin to my family and myself, to give further
time to this case away from home. I do not wish to obtrude my
personal affairs upon the Court, but cannot refrain from saying
that my unfortunate and reluctant connection with the case has
been the source of untold trouble to me. Guiteau says he regrets
that his relatives had not all died twenty-five years ago. It cer-
tainly would have been better for himself, and the world, at least
for the Garfield and Scoville portion of mankind, if he had never
been born. Thanking the Court, and especially Judge Cox, for the
uniform kindness and courtesy shown me, I ask your Honors to
accept my withdrawal.

4i See 4 Am. St. Tr., 476.

« See 3 Am. St. Tr., 309.

156 XIV. AMERICAN STATE TRIALS.

Scriptural passage, the 10th chapter of Matthew, and offer a prayer
on his own account. It was arranged that he should drop a piece
of paper as a signal for the drop. At 9:15 he took exercise in the
corridor, walking so briskly that his guards could hardly keep
pace with him. At 10 o'clock he took a plunge bath in the presence
of the "death watch" only. About 11 o'clock he called for paper
and busied himself copying his "Prayer upon the scaffold."

Then the guard came out of the* door and said, "He is ready
for the Doctor now, and wants the flowers to come." But if any
flowers were sent to him they were detained by the authorities, who
had suspicions that some of them were impregnated with poison.
In the meantime he had his boots blackened and had eaten his
dinner.

At five minutes past 12 General Crocker read the death warrant
to the prisoner in his cell. The only persons present were General
Crocker, Warden, Deputy Warden Rush, and Rev. Dr. Hicks.

The procession moved quietly to the scaffold and Guiteau as-
cended the twelve steep steps with as much steadiness as could be
expected from a man whose arms were tightly pinioned behind him.
Guiteau gazed upon the crowd, looked up at the beam over his head
and quickly made a survey of all the dread paraphernalia. All
heads were bared and Dr. Hicks made an invocation.

During the prayer Guiteau stood with bowed head. At the con-
clusion Dr. Hicks opened the Bible, and Guiteau, in firm tones, said:
"I will read a selection from the 10th chapter of Matthew from 28th
to 41st verse inclusive."

He read this in a clear, strong voice, and with good intonation,
showing little, if any, nervousness. Dr. Hicks then produced the
manuscript which was prepared by the prisoner that morning, and
held it before Guiteau for him to read. Guiteau exhibited a slight
nervousness, and moved several times. Looking over the sea of up-
turned faces he said, "I am now going to read to you my last dying
prayer." He then read in a loud tone, and with distinct and de-
liberative emphasis the following:

"Father, now I go to Thee aria the Saviour. I have finished the
work Thou gavest me to do and I am only too happy to go to Thee.
The world does not yet appreciate my mission; but Thou knowest
it. Thou knowest Thou didst inspire Garfield's removal, and only
good has come from it. This is the best evidence that the inspira-
tion came from Thee, and I have set it forth in my book that all
men may read and know that Thou, Father, didst inspire the act
for which I am now murdered. This Government and nation by this
act I know will incur Thy enmity as did the Jews by killing Thy
Man, my Saviour. The retribution in that case came quick and
sharp, and I know Thy divine law of retribution will strike this
nation and my murderers in the same way. The diabolical spirit
of this nation, its Government, and its newspapers, towards me will
justify Thee in cursing them, and I know that Thy divine law of
retribution is inexorable. I therefore predict that this nation will

CHARLES J. GUITEAU. 157

go down in blood and that my murderers, from the Executive to
the hangman, will go to hell. Thy laws are inexorable. Oh Thou
Supreme Judge! Woe unto the men that violate Thy laws! Only
weeping and gnashing of teeth awaits them. The American press
has a large bill to settle with the Righteous Father for their vin-
dictiveness in this matter. Nothing but blood will satisfy them,
and now my blood be on them and this nation and its officials.
Arthur, the President, is a coward and an ingrate. His ingratitude
to the man that made him and saved his party and land from over-
throw has no parallel in history, but Thou, Righteous Father, will
judge him. Father Thou knowest me, but the world hath not known
me, and now I go to Thee and the Saviour without the slightest
ill-will towards a human being. Farewell, ye men on earth."

When he had finished reading his prayer he again surveyed the
crowd and said, still with a firm voice: "I am now going to read
some verses which are intended to indicate my feelings at the mo-
ment of leaving this world. If set to music they may be rendered
effective. The idea is that of a child babbling to his mamma and
his papa. I wrote it this morning about 10 o'clock.

He then commenced to chant these verses in a dole'ful style:

"I am going to the Lordy. I am so glad.

I am going to the Lordy. I am so glad.

I am going to the Lordy. Glory, hallelujah; glory hallelujah.

I am going to the Lordy;

I love the Lordy with all my soul; glory, hallelujah.

And that is the reason I am going to the Lord.

Glory, hallelujah; glory, hallelujah. I am going to the Lord."

I saved my party and my land; glory, hallelujah.

But they have murdered me for it, and that is the reason I am going

to the Lordy.
Glory, hallelujah; glory, hallelujah. I am going to the Lordy.
I wonder what I will do when I get to the Lordy;
I guess that I will weep no more when I get to the Lordy.
Glory, hallelujah!

I wonder what I will see when I get to the Lordy,
I expect to see most splendid things, beyond all earthly conception.
When I am with the Lordy, glory, hallelujah! (raising his voice to

the highest pitch that he could command) glory, hallelujah! I

am with the Lord."

Rev. Dr. Hicks said: "God the Father be with thee and give thee
peace evermore." Attendants pinioned his legs, placed the noose
over his head, adjusted it about his neck; placed the black cap over
his head. Guiteau called out in loud tones, "Glory, glory, glory,"
and dropped a piece of paper; instantly the spring was touched,
the drop fell and Guiteau swung in the air. The body turned partly
around, but there was not the slightest perceptible movement of the
limbs, or any evidence of a conscious effort to move them.

When the drop fell a yell was sent up by some persons inside the

158 XIV. AMERICAN STATE TRIALS.

jail. This was echoed outside by the voices of a thousand or more
people, who hurrahed lustily. For forty seconds after the drop fell
the body hung motionless, then there was a slight motion of the
shoulders and legs, due to muscular contraction.

Three minutes after the body was lowered to be examined by
the physicians. There was a decided action of the heart for fully
fourteen minutes, and the pulse fluttered two minutes longer. When
the body had hung with the feet just touching the ground for over
half an hour, it was lowered into the coffin which was waiting for
it under the scaffold. The physicians decided at once that the neck
had been broken. When the body was lowered the black cap was
removed and the face exposed. The features were pallid and com-
posed. Warden Crocker ascended the steps of the scaffold and, ad-
dressing the crowd, said those who desired could pass along the
side of the scaffold and view the body.

Some jail officers, two or three physicians, and Dr. Hicks stood
about the coffin. John W. Guiteau fanned his dead brother's face.
At 1:40 the body was borne to the jail chapel, where the physicians
who were to make the autopsy were assembled.

A close examination proved that the neck was broken and that
the rope had cut deep into the flesh.

As Mr. Guiteau and Dr. Hicks declined to remove the body from
fear that it would not be safe in their possession outside the jail
the interment took place the day after the execution in one of the
corridors of the jail, the exact spot even being retained as an official
secret. But before burial his body was taken for dissection.

"There was some delay and the weather was as hot as it can only
be in Washington in summer. The brain, therefore, was found to
have undergone the post-mortem softening that might have been ex-
pected. Pieces were taken by various physicians and I made a
careful examination, but with negative results. Other specimens
were taken by Dr. Lamb of the Surgeon General's office, who had
made the atopsy on the body of President Garfield, and by Dr.
Shakspere, a distinguished pathologist of Philadelphia. One neu-
rologist who was present at the autopsy and who examined it, de-
clared the brain of the assassin to be affected. I believe that the
appearances he found were undoubtedly due to carelessness in
handling and to the hot weather in which conclusion the others
agreed."^

Two official reports of medical examinations, microscopical and
otherwise, of the assassin's brain were afterwards published.

43 Dr. Hamilton's Reminiscences, p. 359. See ante p. 4.

THE TRIAL OF LEON F. CZOLGOSZ FOR THE

MURDER OF PRESIDENT McKINLEY,

BUFFALO, NEW YORK, 1901.

THE NARRATIVE.

In September, 1901, President McKinley1 paid an official
visit to the Pan-American Exhibition at Buffalo, N. Y.
September 5th was set apart as President's Day, when he
delivered on the grounds an address to a great assemblage.
On the morning of September 6th he was taken by the
Exposition and city officials on an excursion to Niagara Falls,
from which he returned at 4 p. m., to the Temple of Music,
where a public reception was held. Here the President (at
his left and right the President of the Exposition2 and his
secretary3 and surrounded by Secret Service detectives and
soldiers) shook hands with a long line of citizens of every
rank and condition. The reception was nearly over, when the
next man in line, who had the appearance of a young work-

i McKinley, William (1843-1901). Born Niles, Ohio. His parents
being poor, at the age of seventeen he became a country school
teacher. In 1868 he enlisted in the 23d Ohio, its Colonel being
Rutherford B. Hayes. He rose by successive promotions to the
rank of Major and was mustered out of service in July, 1865.
Studied law and began the practice in Canton, 1867; Member House
of Representatives, 1876-1890; Governor of Ohio; elected President
of the United States, November, 1896, and re-elected November, 1900.

sMilburn, John George. Born Sunderland, Eng., 1851; studied
law at Batavia, N. Y., and practiced in Buffalo and New York City;
President Pan-American Exposition, 1901.

sCoktelyotj, George Bruce. Born New York City, 1862; Grad.
State Normal, Westfield, Mass., 1882; Georgetown Univ. (LL. B.),
1891; (LL. D. Hon.), 1903; Stenographer to President Cleveland,
1885, and secretary to Presidents McKinley and Roosevelt, 1898-
1903; Secretary of Commerce and Labor, 1903; Chmn. Nat. Rep.
Com., 1904; Postmaster General, 1905-1907; Secretary of Treasury,
1907-1909; Pres. Con. Gas Co., N. Y.

(159)

160 XIV- AMERICAN STATE TRIALS.

man, but whose right hand was wrapped in a handkerchief
as if it were wounded, offered his left to the President, who
grasped it. Like a flash he withdrew his right hand and
pressing it against the President's body, fired into him two
shots from a pistol concealed in the handkerchief. The Presi-
dent fell back in a chair, exclaiming, "May God forgive
him. ' ' The guards sprang upon the assassin, bore him to the
ground, one of them striking him a fierce blow in the face,
his pistol was secured and he was at once taken to jail
after a narrow escape from being lynched.

President McKinley was removed to the home of Mr.
Milburn where a surgical operation disclosed that one of
the bullets had done no harm, but the other had passed
through his stomach, lodged in his back and could not be
located. For several days he seemed to be doing well and
on September 11th his physicians thought him out of danger,
but two days later there came a sudden change and he died
on the morning of September 14th.

The assassin was Leon F. Czolgosz, a workman 28 years
old, born in Detroit, Michigan, but of foreign parents. He
stated that he shot President McKinley because he thought
it was his duty. He did not believe that one man should
have so much service and another man should have none,
and all the others regard it as a privilege to stand by and
render services; that he understood the consequences and
was willing to take his chances. He had gone to Niagara
Falls in the morning intending to kill the President there,
but was not able to get near enough to him. He then re-
turned to the Exposition grounds intending to get near him
and shoot him. He arranged his revolver, covering it with
his handkerchief in his right hand. If he had not been
seized and thrown to the ground he would have fired other
shots. He had been thinking about killing the President
for several days before that; he had determined to kill him
at the first opportunity, for he thought the President was
a tyrant and should be removed; he had for several years
been studying the doctrines of anarchy; he believed in no

LEON F. CZOLGOSZ. 161

government, no marriage relation and had been influenced
by the teachings of Emma Goldman.

Notwithstanding the great grief and indignation of the
whole Nation and the demand that the assassin should be
promptly punished, the enormity of the crime suggested to
most people that it could only be the act of an insane man.
The legal officials in the city of Buffalo, representing not
only the people of the State of New York but those of the
whole Nation, gave to the accused every consideration possi-
ble.4 The Bar Association of the County, through its presi-

* In a letter to the editor, Mr. Penney, the then Public Prose-
cutor of Erie County, says:

"Immediately upon the announcement of the shooting of Presi-
dent McKinley the people of Buffalo became greatly excited. Im-
mense crowds began to congregate in various places, especially
around Police Headquarters. It was the consensus of opinion of
those in charge of the Police and the Prosecuting Department, of
which I happened to be the head, that it needed but a spark to
start a very serious situation. It was our thought that if anyone
was daring enough to attempt to become a leader the mob would
undoubtedly make an effort to take the prisoner from the custody.
of the authorities and that a disgraceful tragedy would follow. We
immediately gave our attention to the task of averting such a dis-
aster and perfected plans to keep from the crowd the knowledge
of the whereabouts of the prisoner. After a conference with Gen-
eral Bull, who was then in charge of the Police, and after a brief
interrogation of the man at Police Hearquarters we had him quietly
and secretly taken from the rear of the building and conveyed in a
private conveyance to the Penitentiary, instead of the Jail, which
was the usual place to which a prisoner was taken. Under my
direction there were assigned to be the prisoner's guards a suf-
ficient number of selected men, known to be trustworthy, so that
there was always at least two men on guard with the prisoner from
the time of his arrest until after his trial.

The purpose of keeping so close a guard of the prisoner was two-
fold: (1) to safeguard him from any mob attack which might be
incited at the time; (2) but more especially to prevent the pris-
oner from being interviewed by any of the sensational news writers
of the day who were here in great numbers from all over the
country.

When news of this unfortunate tragedy reached me I recalled to
mind the disgraceful scenes that surrounded the detention and
trial of the assassin of President Garfield in Washington, the man
Guiteau, and I was determined so far as lay within my power not
only to avoid a repetition of those disgraceful scenes, but to make

162 XIV. AMERICAN STATE TRIALS.

dent, Mr. Adelbert Moot5 induced two of the oldest and most
respected members of the New York Bar, both of them
retired Judges of its Supreme Court, to accept from a high
.sense of duty to the public, the defense of the prisoner; and

the prosecution of Czolgosz an orderly, dignified procedure that
could in no way bring criticism upon our own community or upon
our form of government generally.

I do not believe that there were many at the time, and but very
few now, who realized the extraordinary difficulties which we faced
and the great pressure that was brought to bear upon myself, my
office and General Bull of the Police Department to gain access to
this man Czolgosz. Large sums of money were offered to my sub-
ordinates to procure from them even their recollections of what
they had seen of this man or heard of his statements, but I was
fortunate enough to be surrounded by trustworthy people, and, as
you will recall, not a word was printed in the newspapers and not
a single reporter had access to this prisoner; in fact, not any per-
son except a few of the officials in charge of his prosecution and
his own counsel.

During the time when our beloved President McKinley was suf-
fering from his wounds and before he died members of his Cabinet
and Vice-President Roosevelt were here; also the President's Sec-
retary, Mr. Cortelyou. They were, of course, primarily interested
in the condition of the President, but they were also vitally inter-
ested in the procedure attendant upon the prosecution of his as-
sassin. I had many conferences with several of them, including
Mr. Root and Mr. Cortelyou and Vice-President Roosevelt, and I was
very glad to find that my own ideas of how the procedure for the
prosecution of this man should be conducted were approved by all
of them; that is, that all the proceedings should be conducted with
the utmost dignity; that every sensational feature should be elim-
inated; that this man should have every right extended to him
under our laws; that there should be permitted no feeling or ex-
pression that might be termed "vengeance" for the great wrong
that he had perpetrated upon our country. In carrying out those
ideas everything was done for this man that would have been done
for any other individual charged with any crime — even more, be-
cause he was given the advantage of having the best legal counsel
that could be obtained, besides having the best medical advice in
the country.

In my judgment, the greatest and most important aspect of that
situation was keeping the whole proceedings on such a high plane;
keeping the custody of the prisoner in the beginning so free from
sensationalism; preventing an outbreak of the populace to commit
unlawful acts; and carrying the whole thing through in such an
orderly manner. Many of the things last mentioned above were
not thought of by the average individual and certainly were not

LEON F. CZOLGOSZ. 163

experts to examine his mental condition selected by his
counsel were allowed free access to him and both they and
his lawyers were paid out of the public treasury6 The trial
judge refused to accept his plea of guilty in order that the
fullest examination should be made as to his legal responsi-
bility and that the question of his guilt should be passed upon
by twelve of the citizens of the county where the crime
was committed. And after his sentence his sanity was again
examined by experts on medical diseases.

His trial, which began on September 23d, lasted only two
days, a verdict of guilty being returned in half an hour. The
question of insanity was not raised, except in the speeches
to the jury, as all the experts reported that he was sane and
no witness appeared in his defense.

On October 29th he was electrocuted in the State Prison
at Auburn. He walked quietly to the chair and said :

"I killed the President because he was the enemy of the good
people; of the good working people. I am not sorry for the crime,
that's all there is about it."

At that moment the current was turned on; his body
bounded against the back of the chair and the Anarchist
was dead. Several specialists then held an autopsy and
found all the organs, including the brain, in a perfectly
normal condition. A grave had been prepared in the prison

known to most people, but they were very much more important
than the trial itself or what is ordinarily called the prosecution of
the criminal. The first unofficial interview with Czolgosz was had
after his conviction and after he had been put into the custody of
the Sheriff to be transported to Auburn. All of this was not
strictly a part of the trial, but in my judgment, was much more
important than the actual trial itself."

s Moot, Adelbert. Born, Allen, N. Y., 1854; Grad. State Normal
School and Albany Law School. Began practice, Nunda, N. Y.,
1876, and in Buffalo, since 1879; Presdt. Unitarian Congress, 1915;
Commr. of Statutory Consolidation, N. Y., Regent Univ. of N. Y;
Presdt. State Bar Assn, 1909-1910.

« Mr. Lewis and Mr. Titus received a fee of $350 each. The alien-
ists who examined him received: Dr. Carlos P. McDonald, $300;
Dr. Joseph Fowler, $200; Dr. Floyd S. Crego, $200, and Dr. James
W. Putnam $200.

164 XIV. AMERICAN STATE TRIALS.

yard into which was emptied six barrels of quicklime and a
carboy of sulphuric acid, and in this the body of Czolgosz
was placed.

THE TRIAL.7

In the Supreme Court, Buffalo, New York, 1901.

Hon. Truman C. White,8 Judge.

September 16.

Today at 4:40 p. m., the grand jury of Erie County re-
turned an indictment charging Leon F. Czolgosz, alias Fred
R. Nieman, with the shooting of "William McKinley on
September 6, 1901, from the effects of which he died on Sep-
tember 14. At 5 :40 the prisoner was brought into the
County Court, Judge Edward K. Emery9 presiding. He
was of medium height and size, fair hair and complexion,
with a face not bad, but rather simple and loutish in its

^ Bibliography. "The trial, execution, autopsy and mental status
of Leon F. Czolgosz, alias Fred Nieman. By Carlos F. MacDonald,
A. M. M. D. "With a report of the post-mortem examination, by Ed-
ward Spitzka. * * * Baltimore, 1902. (From American journal
of insanity. Vol. LVIII, No. 3, 1902.)"

"Official Report of the Experts for the People in the case of The
People vs. Leon F. Czolgosz. By Joseph Fowler, M. D., of Buffalo,
N. Y.; Floyd S. Crego, M. D., Professor of Insanity and Brain Dis-
eases in the University of Buffalo; James W. Putnam, M. D., Pro-
fessor of Nervous Diseases in the University of Buffalo, N. Y. Re-
printed from the Philadelphia Medical Journal, 1901."

"The Trial of the Anarchist Murderer, Czolgosz. Leroy Parker.
The Yale Law Journal, vol. 11, pp. 85-94."

"The Buffalo Express and the Buffalo Courier. Sept. 22-26, 1901."

"The Washington Star, Sept. 23-25, 1901."

"The New York Times, Sept. 23-25, 1901."

"The Life of William McKinley" (Fallows).

s White, Truman Clabk (1840-1912). Born Perrysburg, N. Y.
Enlisted in 10th N. Y. Cavalry, 1861, and discharged (1st Lieut.)
1865. Admitted to N. Y. Bar, 1867. Judge Superior Court 1891-1910.

9 Emery, Edward Kellogg. Born Aurora, N. Y., 1851. Admitted
to Bar, 1870 and practiced in Buffalo; Member N. Y. Assembly,
1880; Judge Erie County Court, 1896-1906; Judge Supreme Court,
1907.

LEON F. CZOLGOSZ. 165

expression. He had the look of an ordinary country lad with
little experience in the world.

Mr. Penney, District Attorney. Czolgosz have you a lawyer?

The prisoner shook his head and when the question was repeated
he gave a simple stare.

Mr. Penney. Czolgosz you have been indicted for murder in the
first degree. Do you want counsel to defend you? Look at me and
answer.

The prisoner remained mute.

Mr. Penney. As the accused declines to answer, I suggest that
counsel be assigned by the court to advise him what to do and to
defend him.

Judge Emery. Czolgosz, you have appeared for arraignment in
court without counsel. The law makes it the duty of the court to
assign counsel for you. The Bar Association of our county has
considered the matter and has suggested the names of certain men
of high character for such assignment. The Court has seriously
considered the question and after such consideration has concluded
to follow the suggestions made by the association. The Court there-
fore assigns the Hon. Loran L. Lewis and the Hon. Robert C. Titus
as your counsel.^

In the unpublished autobiography of Judge Lewis possessed by
his family, he writes of the interview of Mr. Moot, President of
the Erie County Bar Association, with him, to have himself and
ex-Judge Titus to act as counsel for Czolgosz upon the designation
of the Court as follows:

"He informed me of the action of the Bar Association. My in-
clination was to refuse to act and I so told Mr. Moot, but that I
would consider the matter. Judge Titus was at that time out of
the city. Many of my friends advised me not to undertake the de-
fense. My sons thought I ought not to accept it. Their objections
were that the trial would make serious drafts upon my nervous
system. I received letters objecting to any defense being made
of the assassin (see post p. 205). I was at the time 76 years old,
but was in fair physical condition. Upon reflection, I concluded
that it was an opportunity to teach the people of the country a

io The Bar Association of Erie County through its President,
Adelbert Moot and Secretary James L. Quackenbush had suggested
to Judge Emery that as the accused seemed to be friendless and
without money, it was important that counsel should be assigned
by the court of such experience and professional standing as to in-
sure that the highest traditions of the profession would be upheld
and that the trial would be dignified, just and impartial. It asked
that two ex-Judges of the Supreme court who had been in active
practice for many years should be selected. They were Loran L.
Lewis and Robert C. Titus, whose consent to serve had been ob-
tained by Mr. Moot.

166 XIV- AMERICAN STATE TRIALS.

wholesome lesson by conducting the trial in an orderly, proper
manner, without any attempt to delay the trial by unnecessary sub-
terfuges and objections. To see, of course, that the defendant had
everything done to prevent his conviction that could be legally and
properly done, and I concluded to act as his counsel with Judge
Titus, and so informed the committee. After our designation by
the court, I called at the jail to have an interview with my client.
I had him brought out of the cell, informed him that I had been
designated by the court to act as his counsel and that I had come
over to have an interview and learn about the defense. He looked
me in the eyes but made no reply. I made several attempts to get
him to talk, but he uttered not a word. Finding it impossible to
get any information from him, I told the officer to put him back in
the cell, and left. Judge Titus and I consulted about the case. "We
knew, of course, that the only possible defense was to show that
Czolgosz was insane at the time of the commission of the offense.
We obtained the consent of the court to employ some celebrated
alienists and did so. They examined him carefully and reported
to us that they believed him to be sane. The trial came on lasting
part of two days. At the conclusion of the evidence on the part
of the people, I inquired of Czolgosz if he wished to be a witness.
He shook his head and that was the only recognition that I had
from him during my connection with the case. As I expected to
make the principal address to the jury, and assuming that a
synopsis of my address would be published in many of the news-
papers in the country, and being satisfied that the jury would, of
course, convict the defendant, I made up my mind to use the case
as an object lesson to the people, to devote a large part of my ad-
dress to discouraging the growing tendency to dispose of criminals
by lynching them."

The consent of these distinguished lawyers to act as counsel for
this murderer was not easily obtained. "I had quite a time," writes
Mr. Moot, "in inducing Judges Lewis and Titus to serve as counsel
for Czolgosz, should they be appointed by the Court, because friends
of Judge Titus still thought he was a Democratic political possibility
in this State; that he might still, perhaps, become Governor of the
State, because he was in the State Senate when Grover Cleveland
was nominated for Governor, and there was a very strong body of
Democrats throughout the State who wished to make Senator Titus
the candidate for Governor. As a Judge of our Superior and Su-
preme Courts, Judge Titus had made a good record, and so it was
not unnatural for his friends to think a man of his standing, ex-
perience, ability, and good health, was still a political possibility.
Consequently, these men began telegraphing him, at a Masonic
gathering in Milwaukee, where he was, to refuse to act, if desig-
nated, and when he returned, I had an interview, by appointment,
with Judge Lewis and Judge Titus, in the office of Judge Lewis, in
which Judge Titus quite decidedly intimated that he should refuse
to act. I urged that he should act, as a public duty, as a duty to
his profession, and as a duty to his country, because it was all-

LEON F. CZOLGOSZ. 167

important that counsel for the prisoner should be so experienced,
so wise, and so able, that the country would know they would have
defended the prisoner stoutly, on the ground of his insanity, were
it possible to find facts upon which to rest such a defense. I told
him that I would be delighted to have the prisoner found to be in-
sane, because this country would stand better in its own eyes, and
in the eyes of Europe, should that be the result of the trial. I
called his attention to what President McKinley had said, to the
effect that the man must have been insane, to shoot him, and said
those words of the President himself would be invaluable in estab-
lishing such a defense, if the facts existed upon which to establish
it. I was addressing myself to Judge Titus, but Judge Lewis was
listening all the time and saying nothing. At the time, I did not
know that Judge Lewis's whole family, and his friends, had also
urged him not to accept a designation, because the public would
never forgive so ardent an admirer of President McKinley, should
he defend the assassin of McKinley. Finally, after quite a long
conversation with Judge Titus, Judge Lewis turned to Judge Titus
and said, in substance: 'Judge, we are not cowards, and if it is
our duty to defend Czolgosz, we will defend him.' Judge Titus,
who had been a District Attorney, and opposed to Judge Lewis in
the trial of the celebrated Manke case, replied: 'No, we are not
cowards, and, if you think it is our duty to defend him, we will
defend him.' They then fell into a short conversation with each
other, in which they discussed the situation, and the controlling
consideration with them was, that if they would not defend Czol-
gosz, who would, except some unfit sensationalist. Before they left
the room, they promised me they would defend, if they were desig-
nated to defend Czolgosz, and then, as the President of our local
Bar Association, I suggested their designation by the Court to de-
fend Czolgosz."

September 17.

The indictment was read to the prisoner.

Mr. Penney. Leon Czolgosz, how do you plead?

The prisoner made no reply.

Mr. Penney. • Do you understand what I have read to you ?
Do you understand that you are charged with the crime of
murder in the first degree ? You can say yes or no.

The prisoner remained mute.

Mr. Lewis said that he had called upon the prisoner and
had not been able to learn any wish upon his part as to
the employment of counsel; that he appeared informally to
enter a plea of not guilty for the defendant, the law re-
quiring that such a plea should be entered under these
circumstances. He reserved the right, however, after con-

168 XTV. AMERICAN STATE TRIALS.

sultation with Judge Titus, who was then out of town, if
they concluded not to make an application for the assignment
of other counsel, to withdraw the plea of not guilty, and in-
terpose, if thought advisable, another plea in the case in the
way of a demurrer to the indictment. Reserving this right, he
entered the plea of not guilty for the defendant.

The District Attorney moved that the indictment be trans-
ferred to the Supreme Court and gave notice that the trial
would begin on Monday next, the first day of the term.

Mr. Lewis said he knew no reason why the defense would
not be ready.

The Court granted the motion.

Mr. Lewis said that medical experts, at the instance of the
People, had already examined the accused; he, therefore,
wished an order permitting experts selected by the defense
to make a similar examination as to his sanity.

The District Attorney said that every facility would be
given the defense to do so.

The Court granted the order.

September 23.

The prisoner was arraigned today in the Supreme Court.

Thomas Penney, 1X District Attorney and Frederick Hatter,
Assistant District Attorney, for the People ; Lor an L. Lewis, x2
Robert C. Titus,13 and Carlton E. Ladd for the Prisoner.

11 Penney, Thomas. Born London, Eng., 1859; Ed. at Williston
Acad. Easthampton, Mass. and Yale, A. B. 1887; LL. B. 1889, Ad-
mitted to Bar, Conn. 1889; N. Y. 1890; Began practice at Buffalo:
Asst. Dist. Atty. Erie Co. 1894-1897; Dist. Atty, 1897-1902; Presdt.
Inter. R. R. Co. 1908-1913; V. P. and General Counsel, 1914; Re-
sumed practice of Law 1913; Grand Master Masons, N. Y., 1916-1918.

12 Lewis, Loran Ltjdowick (1825-1911.) Born Auburn, N. Y.; ad-
mitted to Bar 1848 and practiced law in Buffalo; State Senator 1869-
1873; Judge Supreme Court 1883-1897; returned to practice in Buf-
falo and died there. Before he went on the bench he was for years
the leading trial lawyer in western New York.

is Titus, Robekt Cyrus (1839-1918). Born Eden, N. Y. Grad.
Oberlin Coll. Taught school and studied law; enlisted in Civil
War; admitted to Bar, 1865; Clerk Erie Co., N. Y., 1865; Practiced
law in Buffalo for 30 years; District Atty. (Erie Co.); State Sen-
ator; Chief Judge Superior Court of Buffalo, 1885-1894; Judge Su-
preme Court, N. Y., 1896-1900.

LEON F. CZ0LG08Z. 169

Judge White. Czolgosz, you are indicated and charged with hav-
ing committed the crime of murder in the first degree. It is al-
leged that you on the 6th day of September of this year unlawfully
shot and killed "William McKinley contrary to law, how do you
plead ?i*

The Prisoner. Guilty.

The Court. That plea cannot be accepted in this Court. The
Clerk will enter a plea of not guilty and we will proceed with the
trial.

Mr. Penney. This defendant appeared in the County Court last
week, and at that time Judge Emery assigned as his Counsel the
Hon. Loran L. Lewis and the Hon. Robert C. Titus, and his asso-
ciate, Mr. Ladd, to attend to the case and ascertain the rights that
this man had and to put in such defense as to them they deemed
best. They are here to attend to that in this Court this morning.
I will ask Your Honor to confirm that assignment.

Mr. Titus. If the Court please, it has been thought best by my
distinguished associate and myself and my young friend that some-
thing should be said, not in the way of apology, but as a reason
why we are here in defense of this defendant. At the time we
were assigned I was out of the city, and neither of my associates
were consulted about the assignment. I at first declined absolutely
to take part in the defense of the case, but subsequently it was
made to appear to Judge Lewis and myself that it was a duty which
we owed alike to our profession, to the public and to the Court
that we accept this assignment, unpleasant though the task is for
us, and we therefore appear to see that this defendant, if he is
guilty, is convicted only by such evidence as the law of the land
requires, and that in his trial the forms of law shall be observed
in every particular and that no act or no piece of evidence shall
be introduced here and accepted against him unless it is such as
would be introduced and accepted upon the trial of the meanest
criminal in the smallest case.

The Court. It certainly accords with the views of this Court
that gentlemen like yourselves should have been appointed by the
County Court to defend this prisoner. It gives to the public and
the Court, and those engaged in the administration of the law ab-
solute assurance that the prisoner will receive fair treatment during
the progress of this trial, and that he will meet with such justice

14 Dr. . Allan McLane Hamilton, one of the experts in the trial
of Guiteau (see ante p. 84) was present at the trial and says in
his Recollection of an Alienist (see ante p. 3): "The prisoner
was brought into court accompanied by one of his brothers. He was
a tall young man with good features but bore the effects of his
ill-usage for a red scar ran across his face. His was a prepossess-
ing personality and there was none of the repulsive cunning or
ugliness of Guiteau." ■ Dr. Hamilton considered him a defective,
"the reflex of the yellow journals and the fruit of months of insane
brooding."

170 XIV. AMERICAN STATE TRIALS.

as the law demands in his behalf as he is assured by the funda-
mental law of the land.

The plea of "guilty" which has been entered by the prisoner,
indicates as the Court looks upon it, that he bimself anticipates no
escape from the penalty which the law prescribes. Of course, that
plea cannot be accepted, and the progress of the trial should be
the same in my judgment as though he himself had entered a plea
of "not guilty." I am sure you gentlemen will protect him to the
same extent that you would if you were retained for a munificent
compensation to do the duty which you are undertaking to do now.

Some question has been raised, and discussed in the public print
at any rate, as to the jurisdiction of the County Court to appoint
you gentlemen. It is my pleasure to not only confirm, but if it
should be deemed necessary, appoint and designate you to the task
which you have set out to perform.

The Clerk. By direction of the Court, the defendant is informed
that if he intends to challenge an individual juror, he must do so
when the juror appears and before he is sworn, and that the follow-
ing are duly called to try the case.

The following jurors after being examined by Counsel on both
sides as to their qualifications to serve were accepted and sworn:
Frederick V. Lauer, Richard J. Garwood, Henry W. Wendt, Silas
Carmer, James S. Stygal, Jr., William Loton, Walter E. Everett,
Benjamin C. Ralph, Samuel P. Waldow, Andrew J. Smith, Joachim
H. Mertens, Robert J. Adams.

Each juror stated on his examination that he had formed an
opinion cf the guilt or innocence of the accused but that such
opinion would yield to evidence and would not prevent his giving
a verdict upon the evidence introduced.

Mr. Holler. Gentlemen of the Jury: This man is before
you charged with having committed the crime of murder in
the first degree in the City of Buffalo on the sixth day of
September of this year. It is alleged in the indictment that
upon that day in this City he committed an assault upon
William McKinley, and that with a revolver and fire-arm in
his hands then had and held, he fired upon William McKinley,
inflicting upon him a mortal wound; that the said William
McKinley languished from the 6th day of September of this
year until the 14th day of September, upon which last named
day he died at the City of Buffalo from the mortal wound
so inflicted.

I shall but briefly indicate to you the trend of the evi-
dence as it will be presented to you. The witnesses pro-
duced by the People will show to your minds, I believe, beyond

LEON F. CZOLGOSZ. 171

any reasonable doubt, that for some days prior to the day on
which he committed this crime, he had premeditated and de-
liberated upon it; that he had been informed that the Presi-
dent of the United States would upon the 6th day of Sep-
tember be at the Temple of Music in the Exposition Grounds,
and that he would there receive the populace, would greet
the people who came there to shake hands with him. He
had been informed of that, and upon this day he went to the
Exposition grounds armed, prepared to commit this assault;
that whilst there he learned that the President had entered
the Temple of Music; that he entered the Temple of Music
with the other people who entered at the time to shake hands
with the President ; he got into line with the people who were
passing before the President and awaited his opportunity
and approached the President; that as he approached the
President he had this weapon concealed in his hand; that
as the President extended his hand to shake his hand, he
fired the fatal shot ; that he fired two shots ; one shot so fired
inflicting this wound that I have referred to; that he was
immediately apprehended and disarmed, and has been in
custody ever since; that the President was taken care of
immediately by persons there with him, and was afforded
all the care that could be afforded him; and upon the 14th
day of September thereafter he died from this mortal wound
so inflicted by this man upon that day.

These are in brief the main facts in this case. They will
be presented to you by eye-witnesses, by people who were
there and saw the commission of this crime, by those who
apprehended and who disarmed him at the time. You will be
afforded an opportunity of judging as to the position that
the President occupied and the people approaching him at
this time, and the position occupied by the prisoner. This
opportunity will be afforded you by a diagram and photo-
graphs of the Temple of Music, the building in which this
crime was committed.

This is, in brief, gentlemen, the case of the People, and
I have no doubt that when the evidence is presented to 3rou,

172

XIV. AMERICAN STATE TRIALS.

you will not find much difficulty in arriving at a verdict in
accordance with that evidence.

THE WITNESSES FOR THE PEOPLE.

Samuel J. Fields, Chief Engi-
neer for the Pan American Ex-
position, produced a ground plan
of the interior of the Temple of
Music on the Exposition grounds
made by him on the afternoon
of September 6. It showed the
aisles, the arrangement of the
chairs, the entrances and exits,
the decorations of plants, trees
and flags.

Harry A. Bliss, a photograph-
er, produced photographs of the
interior of the Temple of Music,
taken by him on the morning of
September 7.

Harvey R. Oaylord. Am a
physician and surgeon. I per-
formed the autopsy upon the
body of the late President Mc-
Kinley in conjunction with Dr.
Matzinger on the morning fol-
lowing his death. Upon the wall
of the thorax, just at the junc-
tion of the second and third rib,
was the evidence of a wound in
the skin. Underneath was found
a surgical wound somewhat to
the left of the median line. In
the wall of this wound was a
notch, which we were informed
was what remained of the point
where a bullet had entered the
abdominal cavity. Directly be-
neath it there was a wound in
the wall of the stomach. Be-
neath the stomach and behind it
was a cavity filled with discol-
ored fluid, and at the bottom of
this cavity was a tract in which
I could insert my fingers. On
removing the intestines, we
found that this tract where the
finger entered passed downward

and posteriorly into the fat in
the neighborhood of the kidney;
that the portion of the kidney
adjacent to this opening and
tract showed changes which in-
dicated that it had been injured
during life. "We made careful
search for a bullet; but at the
time did not find any; and later,
as the cause of death was estab-
lished, the search for the bullet
was discontinued. The wall of
this cavity was formed by the
fat posteriorly, the attachment
of the large intestines and the
pancreas; and the pancreas was
seriously involved. The cause
of death was a gunshot wound
leading to changes in the impor-
tant viscera. The condition of
the other organs which were not
included in this area of the
wound were those which a man
of the President's age should
have had. They were not espe-
cially robust organs, but they
were normal for a man of his
condition and age.

Cross-examined. I am con-
nected with the State Labora-
tory and the University of Buf-
falo. The wound I first de-
scribed perforated the skin and
had caused the destruction of a
small amount of fat beneath it,
but did not reach down to the
muscles. We dismissed this as
one of no great importance. The
other was the wound that passed
through the stomach. I do not
think the ball had passed
through any part of the kidney.
A ball could have grazed it and
caused injury, but there was no

LEON F. CZ0LG08Z.

73

loss of continuity which would
enable me to say it had been
perforated. I know of nothing
in medical science that would
have probably arrested the pro-
gress of the wound. I would not
state specifically that the death
of the President was due to in-
jury in any organ made directly
by the bullet. The changes
caused by the bullet, which re-
sulted from the passage of the
bullet through that space back
of the stomach, was what caused
his death, and that was largely
because of the fact that the pan-
creas was involved. It was
caused by the absorption or
breaking up of this material
back of the peritoneal cavity.

An antiseptic is used to pre-
vent the invasion of the tissues
by bacteria — to kill them. It is
used at the time of the interfer-
ence or the operation to prevent
it, and it is used afterwards to
destroy organisms that were al-
ready there. Antiseptics are
not used to prevent inflamma-
tion.

To Mr. Penney. Inflammation
is a popular term which is ap-
plied to a large group of changes
and can be produced in other
ways than by that which follows
infection. Antiseptics are ap-
plied to prevent that form — or
not necessarily that form of in-
flammation, but those changes in
the same tissue which are
brought about by the entry of
organisms into the tissue. There
are other things besides inflam-
mation which it is used to pre-
vent also. The President died
as the result of absorption of
the breaking down material in
this area back of the stomach.
The cause of this was, in the
first place, injury to the tissues

and was probably further facili-
tated by the escape of the secre-
tion of the pancreas into this
cavity. The cause of the injury
to the tissues I should attribute
to the bullet. The office of the
pancreas is in digestion, intes-
tinal digestion. It secretes cer-
tain ferments which act upon
the fluid which passes out of the
stomach into the intestinal tract.
Dr. Herman Mynter. Am a
physician and surgeon. I am
connected with the Buffalo Med-
ical College as a professor of
operative surgery, also with the
German Deaconesses Hospital,
and the German Hospital as sur-
geon; formerly with the General
Hospital and the Sisters' Hos-
pital, too, as surgeon. "Was
called on the day of the shooting
of the President to attend him.
Found him on the table in the
operating room. Found a bullet
wound in the upper part and left
part of the abdominal cavity.
He was slightly under the influ-
ence of opium. I told the Presi-
dent that an operation was indi-
cated at once to save his life,
and he acquiesced. I made prep-
arations immediately with the
assistance of the other gentle-
men present for operation of
opening the abdominal cavity,
called laperotomy. We agreed
to wait for Dr. Mann, who was
on his way, I being the only
surgeon present at that time.
When Dr. Mann arrived I told
him that an operation was nec-
essary at once, and that the
President, if he could help it,
should have the same chance for
his life as if he were a laborer
on the Exposition grounds. Dr.
Mann asked the physicians
whether they wanted him to op-
erate. Dr. VanPeyma answered

174

XIV. AMERICAN STATE TRIALS.

that they wanted Dr. Mann and
me. I acquiesced; told Dr. Mann
I would take half the responsi-
bility. The abdomen was opened
in the line of the incision; air
escaped, showing that there was
a perforation of one of the hol-
low viscus or organs. We found
a bullet hole in the anterior end
of the stomach, which was sewed
together with two rows of silk
sutures. On account of the
stoutness of the President it was
difficult to get at the posterior
wound in the stomach, which we
judged to be present. Dr. Mann
introduced his hand and tried to
locate the forward course of the
bullet. It showed itself to be
impossible; the President's con-
dition showed at that time
shock, his pulse was getting
higher, and it was time
to close the operation. We
washed out the abdominal cavity
with sterilized salt solution,
cleaned everything, put the
omentum back. Previously we
had examined for injuries of
the intestines but found none.
And at that time Dr. Park ar-
rived. We all declared ourselves
satisfied. We closed the wound
with sutures and applied the
bandages. The President's con-
dition, after the operation, was
fair, his pulse being about 124
to 130. He was removed imme-
diately, before he was out of the
influence of ether, to Mr. Mil-
burn's house, where he died. A
majority of us decided he ought
to be removed, as he partly was
under the influence of ether now
and would not know it or feel it,
and would not be injured, and
there was no preparation in the
hospital for patients to stay over
night. Dr. Mann and I went
with friends of ours to the

house, Dr. Park and Dr. Wasdin
accompanying the President. I
helped to carry him up and put
him in bed. That is the history
of the operation. I continued as
one of the attending surgeons on
the President. For the first two
days it was a time of great anx-
iety for us, as we feared inflam-
mation of the bowels from the
gunshot wound. Two days
passed and the President, in-
stead of getting worse, held his
own and was improving. It was
a period of great hope for us;
we thought that the peritonitis,
inflammation of the bowels, was
not apt to occur; as two days
had passed and no complications
occurred, we had strong hopes
that the President might recov-
er. The next two days our hopes
changed to exultation and joy.
The President was evidently
getting better; he was eating
some food, his pulse, although it
kept high, was of good volume;
he had absolutely no symptoms
of peritonitis, or sepsis or any
other serious trouble, and as six
days almost had passed, people
— surgeons, who have often with
abdominal operations to do,
would say that in the majority
of cases they would get well.

We met three times a day, Dr.
Mann and I, Dr. Park and Dr.
Wasdin and Dr. McBurney from
New York, later Dr. Stockton
was called, and Dr. Janeway
and Dr. Johnson, who arrived
after the President was dead.

His treatment, during that
period of his illness, was the re-
sult of our joint consultation.
The autopsy disclosed, first, that
there there was no peritonitis
present, no inflammation of the
bowels; second, that there was
no injury to his heart, which we

LEON F. CZOLGOSZ.

175

had thought there might be;
third, that there was a gunshot
wound of the anterior and pos-
terior wall of the stomach, lead-
ing through a cavity and
•through the mesentery of the
transverse colon, perforating the
posterior wall, hitting the tip of
the kidney and losing itself;
that around the two wounds in
the stomach where the sutures
could be seen, and which were
tight, was an area of gangrene,
or total death of the wall of the
stomach, about as large as a sil-
der dollar; that the whole line
of the track was in the same
gangrenous condition.

The cause of death was what
we call toxemia, a kind of blood
poisoning from absorption of
poisonous products from the
gangrene, produced by the bul-
let wound.

The cause of death of Presi-
dent McKinley was this gunshot
wound that occurred on the 6th
day of September of this year.

When we performed the oper-
ation we could not have located
the bullet without taking out
all the intestines. The Presi-
dent would have died on the
table if we had gone further.
The object in locating the bullet
and removing it would be to get
rid of it so that it might not
raise any disturbance after-
wards. The X-rays were not
used. It was not considered
necessary. Even if we had
known where the bullet was not
one of us would have thought
at the time of trying to remove
it. Even if the X-rays had dis-
closed that the bullet was lo-
cated in the muscles near the
back or near the surface of the
body, that could have been re-
moved without very much physi-

cal disturbance, but still you
might have to use cocaine and
with a weak heart that might
injure him. It would not have
made the slightest difference
either one way or another. The
gangrene of the stomach would
have occurred anyway. The
President was not exactly what
I would call a healthy person.
He was a healthy person for
his age, but with a rather low
vitality.

It is not usual that when a
person receives a wound inside,
gangrene must set up. I at-
tribute it partly to leakage of
the pancreatic fluid, although to
my idea the pancreas was not
wounded by the bullet, but it
might have got into a state of in-
jury by simply the wave of the
bullet striking it, — contrecoup,
as we call it, — and in that way
injury to the pancreas occurred.
That is one idea. Another idea
is that injury was followed with
bacterial growth. That we can-
not say yet because the bacteri-
ological examination is not fin-
ished. Another thing is that the
proximity of the large solar
plexus, the large ganglia near
the heart, near the stomach
wound, might have certain dele-
terious influence upon the nerv-
ous system which already was
weakened, and in that way fa-
vor gangrenous processes. I
have bacteria and so have you
in your intestines, and if that
gets pierced or your stomach
gets pierced, the bacteria may,
alone, in that way, infect the
tract. The intestines were not
injured or pierced at all, simply
the stomach. The pancreas
perhaps itself may have become
contused, although it was not
strictly hurt by the bullet. In

176

XIV. AMERICAN STATE TRIALS.

the same way, for instance, as
when I get a blow on this part
of the head (the right side) my
skull might be fractured on that
(the left side) without that part
(the right side) is hurt at all.
So a violent blow on the stom-
ach may injure the pancreas.
What caused the infection? I
don't know. The bacteriological
examination perhaps may show
you, but that is not finished.

I did not make the autopsy
but was present. They tried to
locate the bullet for four hours
and could not find it, and at last
they were told to desist. The
family of the President would
not have allowed them to go on
any longer and would not per-
mit them to injure the corpse
any longer.

In the same way they would
not permit anything to be re-
moved for pathological examina-
tions of the body.

It would simply have shown
where the bullet was; it would
not have shown this dead tissue
or anything of that kind, nor the
line of the bullet or indicate
that there was gangrene there.

Br. Matthew B. Mann. Am
professor in the Medical De-
partment of the University of
Buffalo, and also connected with
the German Deaconesses Home,
German Hospital, the Almshouse
Hospital, in some as attending
and some as consulting gynecol-
ogist, i. e., one who has to do
particularly with the diseases of
women, and especially with ab-
dominal operations connected
with them. Saw the President
on the table in the operating
room of the Emergency Hospital
on the Pan-American Grounds, a
little after five o'clock. After I
examined the patient and held a

consultation with Dr. Mynter
and some others of the sur-
geons, we decided an operation
should be undertaken at once.
Dr. Mynter, my associate, and
Dr. Parmenter and Dr. Lee as
assistants, we proceeded. We
opened the abdomen with a
knife, making an incision some
three inches in length. The
opening was made down to the
stomach. I introduced my finger
and on the front wall of the
stomach found an opening. I
enlarged the opening and pulled
the stomach up so that I could
get at this opening; then with
a needle and thread I sewed up
the hole according to the usual
methods. The parts were washed
off and returned. I then cut
away some of the fatty tissue
and got at the back wall of the
stomach, and there we found an-
other opening, a little larger
than the one in front, the edges
rather more frayed and bloody,
and with great difficulty we got
that up and closed that in the
same way. The parts were then
washed off with salt and water,
and the parts returned, The
surgeons present expressing
themselves as being satisfied
that everything had been done, I
introduced my hand into the ab-
domen cavity to try and find the
track of the bullet. This was
entirely impossible. There were
no evidences of blood or abdom-
inal contents, intestinal contents,
there on my hand as I withdrew
it. I therefore thought there
was no serious injury, no large
vessels, blood vessels injured,
and I desisted, especially as the
manipulation with my hand in
the abdomen was making the
President very weak, had a very
bad effect on his pulse, as it al-

LEON F. CZ0LG08Z.

177

ways does. To find the track of
the bullet we should have had to
have taken the entire intestines
out of the abdomen, which
would have increased the shock
very much ; probably would have
killed him on the table; and it
is doubtful whether we could
have found the track of the bul-
let even then. The autopsy
showed that we could not. After
this we closed the abdominal
wound with stitches, in the usu-
al way, put on a dressing, band-
ages, and the President was
then removed to the ambulance
and taken to Mr. Milburn's.
After that, a number of sur-
geons and physicians united in
the treatment of the "President,
consulting. They were: Dr.
Rixey, the President's family
physician — a surgeon of the
navy; he assumed the charge of
the President and selected the
staff who were to attend him; he
chose myself and Dr. Mynter as
the surgeons, and Dr. Wasdin
and Dr. Park, and later, Dr. Mc-
Burney was called, also chosen
by Dr. Rixey, and later Dr.
Stockton, and two other physici-
ans came later — too late.

We made a point that two of
us should stay each night with
the President, and the rest of
us would meet three times a
day. His treatment was the re-
sult of the joint consultation of
all of us. Was present at the
autopsy. We found that the ab-
dominal cavity, intestines, were
all in a perfectly healthy condi-
tion; no evidence of inflamma-
tion of the bowels. There was
a point in the front wall of the
stomach, which had been closed
by the suture and around that
was a spot as large as a silver
dollar; where the tissue was

entirely dead, the walls of the
stomach were entirely dead.
We found a similar condition on
the back wall, around the other
bullet hole. Below this there
was a cavity which contained a
lot of fluid and which showed
the evidences of gangrene. In
this cavity was a portion of the
pancreas, as was also the fat
which surrounds the kidney, and
the upper end of the kidney was
very near this cavity, whether
it was in it or not I could not
say. The cause of death of the
late President was this bullet
wound.

Cross-examined. The breaking
down of the tissues and the con-
dition of the body as we found
it were indications not to be ex-
pected from the nature of the
wound the President received;
that was an unusual, unexpected
condition; I have never seen
anything exactly like it. The
gangrenous condition of the
wound is very difficult to ex-
plain; it might be due to one or
several causes. It would be
necessary for further investiga-
tion to be made before any ade-
quate explanation can be made.
That would be the duty of the
pathologists, those that made
the autopsy. I was merely a
spectator of the autopsy. I have
no positive opinion.

Mr. Lewis. Therefore the op-
timistic bulletins that were is-
sued from time to time, by the
physicians, were without any
sufficient knowledge of those
symptoms that were finally dis-
covered? The bulletins which
were issued were not optimistic,
in that they gave no idea of
what was to come; they ex-
pressed no opinion, they merely
stated facts, but the opinions

178

XIV. AMERICAN STATE TRIALS.

that were held by the staff
seemed to be fully warranted by
the condition of the President.
We had no reason to suspect the
existence of any such state of
affairs, within the abdomen.
Whether they appeared in the
bulletins or not, they certainly
appeared in the press extensive-
ly, that the physicians were
quite confident, in fact almost
certain that the President would
recover? Yes, that was so, in
the press, but a good deal was
attributed to the physicians by
the press which was not always
quite correct.

Mr. Lewis. You said that it
was due to several causes, — can
you give us any of them? In-
vasion of the parts by germs,
the entrance of germs into the
parts, might have been one
cause; a very low state of vital-
ity might have been a cause; the
action of the pancreatic juice —
the secretion from the pancreas,
that might have been a cause,
undoubtedly contributed. These
germs that you speak of are
present, if I understand, in all
our bodies? Yes, sir. And make
their work prominent when the
body is in any way injured, that
is, very likely to? That is true.
That you expected, of course, in
this case? If the operation is
carefully and properly done, we
can to a certain extent guard
against the entrance of those
germs, we cannot guard against
it entirely. We guard against it
by having everything absolutely
clean which is used in the op-
eration, the hands of the ope-
rator, instruments, the ligatures
and material with which we
sew, everything has to be rig-
idly clean and free from germs.
Nature can take care of a cer-

tain number of germs, overcome
their bad effect. We try not to
introduce any more than we can
help, so as to tax nature as little
as possible. Are there any rem-
edies known to the profession to
be used to prevent the action of
these germs? There are reme-
dies which will kill the germs,
but it is very difficult to apply
them deep down in the tissues
of the body, and impossible,
once they get a lodgment in the
tissues, impossible to dislodge
them and kill them. There is
nothing then that could be ad-
ministered through the stomach
to prevent it? Nothing at all.
You spoke of the debilitated con-
dition, I don't remember the
word, of the President's body.
Do you mean that there were
indications that his body was in
that condition before he was as-
saulted? The President prob-
ably was not in a very good phy-
sical condition, he was some-
what weakened by hard work,
want of exercise and conditions
of that kind. I think undoubt-
edly that had something to do
with the result. You agree with
the other physicians that the
kidney • was not actually muti-
lated or struck by the ball?

As well as could be deter-
mined the ball did not enter it.
It is impossible to say positively,
but it was injured in some way.
Very possibly by concussion.
Once the organ is injured then
the pancreatic juice, the secre-
tion of the gland will pass
through the gland and can enter
other parts. One portion of it
being healthy, another part dis-
eased, the healthy part would
secrete while the diseased por-
tion will allow the secretion to
pass through it and attack other

LEON F. CZOLGOSZ. 179

parts. Food cannot be digested, dent. From my Knowledge of

if it does not secrete. The only the autopsy and the history of

duty of that organ is to aid di- the case, there was nothing that

gestion. would have saved the life of the

To Mr. Penney. Every known President known to medical or

method of the latest surgical surgical science,

and medical science was applied Lewis L. Babcock.^ Am a

in the treatment of the Presi- member of the Buffalo Bar. In

is Babcock, Louis Locke. Born Gowanda, N. Y., 1868. Admitted
to N. Y. Bar 1890. Captain 65th Reg. U. S. V. in war with Spain,
1898. Brig. Gen. N. Y. State Guard, 1917-1919. Is now a leading
member of the Buffalo bar and of the firm of Locke, Babcock, Spratt
and Hollister. Writing to an army friend on September 12, when
it was thought that the President would recover, General Babcock
gave some interesting details of what he saw, which are not in his
evidence at the trial. "Do not," he says, "let any reporter get hold
of this letter as I promised the District Attorney not to talk for
publication. The day was very warm and everyone was perspiring
and using their handkerchiefs to wipe the sweat from their faces
and hands and to compose their features before passing the Presi-
dent. When crack, crack, went a couple of shots almost together.
I whirled around and saw the President standing perfectly still
and deathly pale. In the field of my vision were my artillery-men
on all sides of a young fellow with a revolver whom they pounced
on like hawks on a chicken. * * * I never saw such an ugly
crowd and had it been led it would have broken into the Temple
and taken Czolgosz away from the few people there and lynched
him. He was soon piled into a hack and by dint of fast driving
and the efforts of some regulars with their rifles and a lot of
Guards, hustled out of the grounds down into the city with the crowd
in hot pursuit. * * * It appears he came into the Temple with
a revolver in his right coat pocket bound up in a handkerchief.
When about 15 feet from the President he drew out his gun with
the handkerchief bound loosely around it. He had practiced, so he
said, this move so that he had it down pat and so it would look
exactly like a loose handkerchief. He of course was protected some-
what in this operation by the person in front of him but I imagine
had his handkerchief been noticed no attention would have been
paid to it as it was so common a sight that day. He expected to
fire all five shots from his double-acting 32 cal. but thanks to the
artillerymen he was pounced on. He never hurried or got out of
his place. He betrayed no agitation whatever, but walked along
directly in front of the President, brushed away the President's
hand with his left hand and fired through his handkerchief with his
right. Knowing that his life was forfeit as soon as he fired, he
showed no agitation on his pretty face or nervousness of any kind
whatever. * * * He at first planned to fire through his coat but
hit upon the other scheme as more effective and surer to work. A
coon claims he grabbed him, but the coon — Parker by name — in the

180

XIV. AMERICAN STATE TRIALS.

July was appointed a member of
the Committee of Ceremonies
and Grand Marshal. On Septem-
ber 6 an excursion was had to
Niagara Falls in honor of the
President, who accompanied it. I
did not go, but remained to make
arrangements for the reception
to take place at the Temple of
Music, on his return. With my
assistants it was arranged so
that the one door at the center
main door should be opened to
admit the crowd, and that the
people should enter the Temple
of Music, turn to the right and
walk towards the stage between
aisles of chairs with their backs
towards the aisle and covered
with blue bunting to a point
some 35 or 40 feet from the pil-
lars. In the right angle formed
by these chairs I placed the dec-
orations, palms, which obtained
from the stage; also two large
bay trees were placed in the
angle, about 6 or 7 feet apart. I
directed a frame-work to be built
directly behind these bay trees
which, when draped with the
flag, prevented anyone seeing the
President from the rear. I ar-
ranged with Major Robertson
for a guard of 30 Exposition Po-
lice and with Captain Wisser for
10 artillery men.

The President arrived at the
Terminal station at 3:30, and at
that time the guards had re-
ported to me and were ready for
duty.

I posted two of the artillery
men to the south of the south
bay tree and adjacent to it, and
two of the artillery men to the
east of the east bay tree. I
posted the other seven artillery
men from a point about oppo-
site where the President would
stand along the center of the
aisle towards the east, and di-
rected them to close in to the
line of people, see that no disor-
derly character went by the
President and that the line kept
moving. The Exposition guards,
aside from those inside and at
the entrance — about 12 or 15 —
were posted so that the people
would pass between them.

The President reached the
Temple of Music a couple of min-
utes before four, accompanied in
the carriage by Mr. Milburn and
Mr. Cortelyou. He took his
place as I indicated, and close to
him were two or three Secret
Service men and several from
police headquarters, all in plain
clothes. The President nodded
to me and said, "Let them
come," and I at once di-
rected a door to be opened.
The crowd at once came in by
twos and threes until they were
forced into a single line by the
guards. Very soon I was in-
structed to have them come
faster and immediately ordered
another door opened, came back
and stood near the President on
the other side of the aisle and

melee between the soldiers (who refused to give up their prisoner)
and the secret-service men for the custody of the prisoner the coon,
I saw, grabbed a Government detective, in civilian clothes, and was
promptly ordered out of the Temple for his pains. Such is fame!
(The coon has quit work and gone into the hero business.) The
soldiers unquestionably saved the President's life. I am going to
see they are rewarded if I can interest Col. Roosevelt or Cortelyou.
They certainly deserve it."

LEON F. CZOLGOSZ.

8

watched the reception. Some
one in the Presidential party —
I think it was Mr. Cortelyou —
said that the people were not
coming in fast enough, and I
again went back to the front
door and directed the Exposition
Guards to open another door
and to let the people in by
threes and fours, then to
straighten them out in column
of twos and a few feet further
on in a column of files. Another

complaint was made that the
people were not coming in fast
enough, and I reiterated my in-
structions to keep the crowd
moving faster, but did not open
any more doors. President Mc-
Kinley at first stood between the
two bay trees, but gradually
worked up towards the east bay
tree. Mr. Milburn was standing
at his left, close to, on the same
line with him and Mr. Cortelyou
was at his right.

THE TEMPLE OF MUSIC

Stage

B F

>

C

'x

Aisle

A B
M

R
Q

G

A— The President

C — Mr. Courtelyou

M — Mr. Milburn

Aiste

R— Mr. Rice

Q — Mr. Quackenbush

G — General Babcock

B — Bay trees

P— Pa

ilms

|H

ntrance

1

182

XIV. AMERICAN STATE TRIALS.

One of the Secret Service men
stood directly behind and anoth-
er directly in front of him, not
more than three feet away, and
the other detectives were sta-
tioned south of the President. I
am quite positive that was
their position sometime before
the President was shot, but their
precise position at the exact in-
stant of the attack on him I am
not able to state. There was no
change in the position of the ar-
tillerymen up to the attack save
that I took one artilleryman
from where I had posted him on
the south side of the aisle and
moved him further east to assist
in hurrying up the people. A
few seconds before the shots
were fired Mr. Rice spoke to
me and told me in substance
that Mr. Cortelyou was about to
give the signal to close the re-
ception. Mr. Rice was standing
about opposite the President
and southeasterly from him on
the outside of the south row of
chairs. He was not in the aisle.
Mr. Quackenbush was standing
near him and both were looking
towards the people whom the
President was shaking hands
with. I told Mr. Rice that when
Mr. Cortelyou said to cut off the
reception to give me a signal
and I would immediately shut
the doors. I then turned from
a position almost in front of the
President and passing behind
the artillerymen walked up
the south side of the aisle to-
wards the easterly entrance of
the Temple of Music. I had
taken probably five or six steps
when I heard two reports of a
revolver. The reports sounded
somewhat muffled and not as a
revolver would normally sound
in an inclosure like that. I

instantly turned around and
looked first at the President,
who as far as I could see, was
standing perfectly still. In the
field of my vision I could see the
artillerymen, or a large propor-
tion of them, struggling with a
man who had a revolver in his
hand. Quicker than I can de-
scribe they bore him to the floor
by force of their numbers, and
rushing back I saw some sol-
dier— but who I cannot say —
wrest the revolver from his
grasp. The artillerymen at-
tacked the man with such vio-
lence that I could not get any-
where near him myself. I am
quite certain that at least 8 or
9 of these artillerymen pounced
upon this man and bore him to
the ground. I am quite sure
that there was no one in the pile
other than the soldiers and the
President's assailant. After they
got the revolver away from him
they retained their grasp on
him, but let him struggle to his
feet, and then Foster grasped
the assailant by the throat and
struck him in the face. Just be-
fore the attack I observed a ne-
gro, whom I learned was em-
ployed in the Temple of Music,
standing north of the aisle and
outside of it, apparently watch-
ing the reception. I asked one
of the guards who he was and
what business he had there, and
was informed that he was an em-
ploye in the building. I saw no
other negro at any other time
during the attack or after it. I
at once rushed towards the
President, who was immedi-
ately led away some 15 feet to a
seat which was standing in one
of the old aisles of the Temple
of Music. A section or so of the
chairs forming the west aisle

LEON F. CZOLGOSZ.

83

was pulled away and the bunt-
ing was torn down by several
people; I assisted in this. The
President sat down. I did not
hear him say anything nor did
the prisoner appear to utter a
word. The prisoner was taken
by the Secret Service men and
the detectives away from the
soldiers who were holding on to
him and into Mr. Henshaw's of-
fice in the Temple of Music. I
do not remember to have seen
the prisoner prior to the assault,
but I am positive that the man
who was arrested was the man
who did the shooting, for the
reason that I saw the revolver
taken away from him.

In a few minutes the Presi-
dent was taken in an ambulance
to the Exposition Hospital. Cor-
poral Berchey of the Artillery
handed the revolver to Captain
Wisser. I was continuously pres-
ent in the Temple of Music or
on the steps of it until the ar-
rival of the District Attorney.
Just after the shots were fired
and during the struggle to se-
cure the prisoner, his nose be-
gan to bleed quite profusely and
there were various spots of
blood on the floor about where
the struggle occurred. Although
I looked I could not find that
the President shed any blood in
the Temple of Music.

Edward R. Rice. Was chair-
man of the committee on cere-
monies for the entertainment of
the President. I stood directly
opposite the President, just over
the line of chairs. It was my
duty to decide when the cere-
monies should conclude. I stood
at the point indicated to get a
signal from Secretary Cortelyou
as to when he thought the cere-
monies should close. The line

had been passing a trifle more
than ten minutes. I took my
watch out indicating to Secre-
tary Cortelyou that the time we
had agreed upon was about up
and he took out his watch indi-
cating that he understood. Al-
most immediately I noticed the
President's hand go forward to-
wards the next person in line;
then a line of white pushed to-
wards the President from the
person that was about to shake
his hand and one or two quick
reports, so quick you could hard-
ly distinguish one from the
other. The thought in my mind
was that some one had con-
cealed a revolver in a newspa-
per. Immediately after the peo-
ple about there all fell in a mass,
I ran towards the east door
where the people were coming
in, calling out, "close the door
and clear the aisle." Then I
came back and noticed the Pres-
ident had been removed to the
chair in the aisle leading to-
wards the stage.

James L. Quackenbush. Am
an attorney and counselor at
law and was a member of this
committee of which Mr., Rice
was chairman; was standing to
Mr. Rice's right and directly op-
posite the President, south of
the line of chairs forming the
aisle and resting my left foot on
one of those chairs. I heard
two shots fired very close togeth-
er; looked towards the President
and saw him straighten up. At
once the artillerymen on the left
of the President lunged forward
towards prisoner and at the
same instant Mr. Gallaher, who
had been standing at the right
of the President, a little to his
rear, plunged forward and prac-
tically about the same time

184

XIV. AMERICAN STATE TRIALS.

these men caught prisoner. I
saw for an instant just a glimpse
of something white as Gallaher
lunged towards him. He went
to the floor and on top of him a
number of the artillerymen. At
the time the shot was fired, di-
rectly in front of the President
and facing him were standing
Foster and Ireland of the Secret
Service, and immediately back
of them and standing in a line
along the line facing the Presi-
dent were artillerymen and their
corporal. To the left of the
President was standing Mr. Mil-
burn and to his left two artil-
lerymen, O'Brien and Neff; di-
rectly behind the President was
Mr. Geary of the Buffalo head-
quarters detective force. Imme-
diately to the President's right
was his secretary, Mr. Cortelyou,
and a little back of him or near
him stood Mr. Gallaher and Mr.
Solomon of the Buffalo Head-
quarters, and to their right were
two other artillerymen, arranged
just a few feet from each other.
It seemed to me as though this
entire mass went down in a
heap on the prisoner.

He came up standing in the
grasp of several of these men.
He was then struck a blow by
Mr. Foster which sent him to
the floor again, and he bled
somewhat from the face. He
was then taken to the room of
Mr. Henshaw.

In the meantime the President
had been assisted by Mr. Geary
and Mr. Milburn to a chair.
Some gentlemen fanned him un-
til an ambulance came and took
him away.

After the prisoner had been
taken away and statements had
been taken from the artillery-
men I accompanied Mr. Penney

to headquarters where the pris-
oner made a statement in my
presence with reference to his
part in this crime. There were
no threats or inducements made
or offered to him; whatever he
said appeared to be voluntary.
This was between ten and eleven
o'clock the night of the shoot-
ing. He was seated at the table
in an inner office. There were
present detective sergeant Geary,
detective sergeant Solomon, in-
spector of police Donovan, su-
perintendent of police Bull, as-
sistant district attorney Haller,
the stenographers, Mr. Storey
and Haggerty and Mr. Ireland
of the secret service, the dis-
trict attorney himself and assist-
ant superintendent of police Cu-
sack. When we entered the
room Mr. Haller handed to the
District Attorney some mem-
oranda which he had, and Mr.
Penney proceeded to talk with
prisoner about what he had
done. I know nothing of what
took place before this time. He
replied to questions by the dis-
trict attorney, stated that he
had killed the President because
he believed that it was his duty;
that he understood the conse-
quences and was willing to take
his chances. He described in
detail in a conversation over
about two hours, his movements
during the day of the shooting
and for some time previous; he
showed how he concealed his re-
volver and how he fired the
shots. He stated that he had
gone to Niagara Falls on the
morning of the day of the shoot-
ing with the intention of shoot-
ing the President at the Falls,
but that he was unable to carry
out his purpose there, not being
able to get near enough to the

LEON F. CZOLGOSZ.

185

President. That he took a street
car from Niagara Falls to Buf-
falo, transferred to a car going
to the Exposition Grounds and
went to the Temple of Music
with the purpose of shooting the
President; that he waited out-
side in the line, that he placed
his revolver in his right hand,
covered it with his handkerchief,
placed his hand covered with the
handkerchief and holding the re-
volver in his right hand pocket,
and stood that way while in the
crowd outside of the entrance to
the Temple, and as he entered
the Temple, but that when he
got to the point where the peo-
ple were singled out in single
file, he took his right hand from
his pocket and held the hand
covered with the handkerchief
across his stomach until he
reached the President, when he
fired. He said had he not been
stopped he would have fired
other shots. That he had been
thinking about killing the Presi-
dent for three or four days prior
to the time of the shooting, that
he fully determined that he
would kill the President the day
before the shooting.

He said he did not believe in
government, that he thought the
President was a tyrant and
should be removed. That the
day before the shooting when he
saw the President in the grounds
he thought that no one man
should receive such services and
all the others regard it as a
privilege to stand by and render
services; that he had for several
years been studying the doc-
trines of Anarchy, that he be-
lieved in no government, no
marriage relation, and that he
attended church for some time
but they talked nonsense and he

discontinued that; that he did
not believe in the marriage re-
lation, that he believed in free
love. He gave the names of sev-
eral papers which he had read,
Polish names which I cannot re-
call, four of them, and he men-
tioned one known as Free So-
ciety. He mentioned places that
he had been to where he had
heard these subjects discussed,
places in Cleveland, Ohio. Be-
fore he came to Buffalo he had
been in Chicago; had been influ-
enced by the teachings of Emma
Goldman and another woman
living near Cleveland, whose
name I do not recall. For the
first half hour he was answering
questions that were put to him
in a brief manner. He seemed
to be cool and not excited or dis-
turbed in any way. He seemed
to be suffering some pain and
constantly applied a handker-
chief to the side of his face
where he was struck in the Tem-
ple of Music and complained
that his eyes hurt him. I asked
him a few questions myself and
later when the District Attorney
was engaged in consultation
with Mr. Haller, Inspector Dono-
van and Detective-Sergeant Matt
O'Laughlin, sat by him and he
told them about his place of
birth, his bringing up in Alpena,
talked about the lumber camps
in Alpena and about his move-
ments from that time until the
time he got to Cleveland and
went to work in the wire-mill
there, about his father's farm,
and in a perfectly easy and con-
versational way. "Without reply-
ing to questions at times he vol-
unteered information.

I asked him to make a state-
ment for publication as to his
reasons. He said he would; he

86

XIV. AMERICAN STATE TRIALS.

started to write it but his hand
shook and he said he would dic-
tate it to the reporter and he
did. I would prefer to refresh
my recollection about that from
a memorandum I have if I could
be permitted. Looking at this
statement it refreshes my recol-
lection so that I am able to
state what it was: "I killed
President McKinley because I
done my duty. I didn't believe
one man should have so much
service and another should have
none." This statement he signed.
This he made for publication. He
made in addition to that a state-
ment of two hours' duration. At
times he volunteered in the true
sense; he went beyond giving
responsive answers. In response
to questions he stated more
than the question called for.

He said he was born in De-
troit, Michigan; that when he
was quite young his parents re-
moved to Alpena, Michigan; that
he went to school there, both to
the public and the parochial
schools. That afterward, when
he was young, his mother died,
that his father married again;
that they removed to Cleveland;
that he worked at one time as a
blacksmith's helper; that subse-
quently he worked in the wire
works near Cleveland; that his
father lived on a farm near
Warrensville, Ohio, some dis-
tance out of Cleveland; that he
lived on his father's farm for
some time but that he, as he put
it, didn't like the style of his
father and step-mother and left
them; said that he didn't have
any quarrel but that he didn't
get along and that he left there.
Asked what he had been doing
for the last two or three years,
he said he had saved up $400

from his earnings in the wire
works, §100 of which he had
given to his father; that he had
supported himself out of the re-
maining |300 and had been
working from time to time; that
he had been to Chicago just be-
fore coming to Buffalo, came di-
rectly from Chicago to Buffalo,
arriving here on Friday previous
to the day of the shooting of the
President. The President ar-
rived in the city on Wednesday
evening, was at the Exposition
Grounds on Thursday, went to
Niagara Falls Friday morning.
He said that he was at the
Grounds at the time of the ar-
rival of the President, during
the ceremonies on the day be-
fore the shooting, and with the
intent of shooting the President
but that he got no good oppor-
tunity.

He told about having attended
a lecture in Cleveland at which
Emma Goldman spoke. He gave
the number of his family, saying
that he had seven brothers; that
they were living in and about
Cleveland. He semed absolutely
willing to answer any question
which was asked him, without
hesitation. I now recall that in
addition to those who were pres-
ent during the time of this con-
versation there was Dr. Fowler,
a surgeon to the police; and that
later in the evening Dr. Fronc-
zak, a physician of this city, and
I think also a lawyer — at least
he was in the Law School — and
who speaks the Polish language,
came in and had a conversation
with the defendant in the Polish
tongue, which he repeated, in
substance, to those present, in
English. He said that he was
entirely alone; that nobody as-
sisted him in any way; that he

LEON F. CZOLGOSZ.

87

conceived the idea, planned the
method and manner of carrying
it out, upon his own responsibil-
ity; that he understood the con-
sequences of such an act and
was willing to take his chances,
and that he wanted a fair trial.

Mr. Titus. You said that he
made the statement that he was
an anarchist. I don't think I
made quite that statement. What
he did say was that he didn't
believe in any government, that
he didn't believe in rulers; he
thought that all rulers were ty-
rants and should be removed
and that he had done his duty
in removing the President. The
District-Attorney, on several oc-
casions, used the word "an-
archy" and talked with him
about anarchists of note, men-
tioning them by name; asking
him if he knew them. Whether
he himself used that precise
term or not I would not state
positively.

Did he say anything upon the
subject as to whether it was his
duty, belonging or owing allegi-
ance or believing in that society,
to slay the heads of govern-
ments ; did he say anything upon
that subject? He did not put it
on any ground of allegiance, but
on the ground of belief, and he
claimed that was the result of
his own individual theorizing
and reflection; not that he used
those terms but that is the sub-
stance of it.

Mr. Penney. Theorizing on
what subject? On the subject of
government and forms of gov-
ernment. In connection with
that did he speak of the lectures
and speakers that he had heard?
Yes sir. The things that he had
heard at these places, that he
was meditating upon? Yes.

Albert L. Gallaher. Am a
United States Secret Service
agent; was with the President's
party when he came to Buffalo
at the time the shooting oc-
curred. Was standing about
eight or ten feet to the Presi-
dent's right. My duties were to
keep the crowd moving along,
after they would shake hands
with the President, to see that
no one would turn back or stop
or blockade the procession. I
heard two shots, fired in rapid
succession. I looked, I saw
smoke coming up from some-
thing white in a man's hand. At
that instant I shot past, jumped
on this fellow, crushed him
down. It seemed like I struck
the floor before I got to him. I
bruised myself considerably on
the knees going in. He was ly-
ing on his right side. I heard
Fostera's voice say to me, "Get
the gun, Al, get the gun." Lay-
ing out at prisoner's right hand
was a handkerchief, blazing. I
grabbed both. Some one at that
instant took the gun from me,
knocked it either from my hand
or grabbed it quick. I held onto
the handkerchief and burned my
hand with it. (Witness pro-
duces from his pocket-book the
handkerchief and hands it to the
District Attorney.) When I got
through with that tussle I
looked around; I saw nothing of
the man, but saw the President
sitting a little to the left of
where he was standing. Just
then Mr. Cortelyou came to me
and asked me for the gun. I
told him I didn't have it but I
located it in the possession of
Corporal Lewis Bertschey. The
next time I saw prisoner was in
the little ante-room, his nose
was bleeding. I made the re-

88

XIV. AMERICAN STATE TRIALS.

mark before they took him out,
they had better wash the blood
off his face.

George F. Foster. Am con-
nected with the Treasury De-
partment, Secret Service Divi-
sion. Was in the Temple of Mu-
sic at the time of the shooting.
Mr. Milburn stood directly to
the left of the President and I
stood almost in front of Mr. Mil-
burn. It was my place to get on
the inside of the circle and keep
them in line and to size up every
person as they came along,
which I generally did; and this
man came along. They were as
close together almost as my fin-
gers passing here, and shuffling
along and looking about to see
when they were going to get up
to shake hands with the Presi-
dent. This man came along and
I looked him right in the face
and he looked at me. He went
right along. I paid no attention.
I thought he was a mechanic
out for the day to do the Expo-
sition and wanted to shake
hands with the President. Had
noticed Mr. Cortelyou a few min-
utes before with his watch out,
and that was a sign to me that
the thing was going to be shut
off very quickly. I turned
slightly, kind of looked around
to see Mr. Cortelyou, and as I
looked around I saw the fellow
put his hand that way. It went
"bang, bang," almost as quick
as that. There was an instant's
pause and I grabbed him. Some-
body on the other side of him
pushed him, and as I twisted
him another person came from
the right of me and we fell on
him together on the floor. I
tried to strike him as I was go-
ing down, but I don't think I
hit him very heavy. But he got

in a twist then looking back this
way at the President. As he fell
he was twisting from the Presi-
dent, and he had his hand on the
floor looking back like as if he
was trying to see what effect it
had had on the President. Just
then I saw Gallaher sliding un-
derneath. I said to Gallaher to
get the gun, and he puts his
hand down that way over the
gun and handkerchief. I looked
around and I saw we had him
secured and I gave the order to
let him up. When he got up I
said, "We will search him." I
just started to put my hand in
his pocket, and just then he
looked over his shoulder to see
what he had done to the Presi-
dent, and it made me so mad I
smashed him right in the jaw.
I went with the President in
the ambulance; was there when
he was undressed; there was a
bullet found in his clothing
which I have here. (Witness
produces bullet.) This was the
bullet that was taken from the
President's clothing after the
shooting in the hospital. The
President called my attention to
it when he was in the wagon.
He said, "I believe that is a bul-
let," and he reached around in
his shirt; and I said "Yes, that
is a bullet, Mr. President"; and
it fell out when they were un-
dressing him.

Cross-examined. In the line
I could not say positive who was
in front of prisoner or who was
behind him. I noticed in the
line several little girls but I
can't tell exactly whether they
were in front of him or not. I
noticed a dark complexioned
man with a black moustache in
line, think he was ten feet in
front of him. In fact I put my

LEON F. CZOLGOSZ.

189

hand on his shoulder and passed
him past the President. I didn't
like his general appearance. And
I motioned to Gallaher to take
care of him after I left him. I
noticed a colored man in the
line but it seems to me he was
in front of this man; I never
saw no colored man in the whole
fracas.

Francis P. O'Brien. I belong
to the Seacoast Artillery, 73d
Company, U. S. Army. Was one
of ten men detailed to do escort
duty in the Temple of Music at
the time of the shooting. I
stood right to the left of Mr.
Milburn and he was on the left
of the President. Well, I was
standing there; everybody was
coming in and I was keeping
them in line. I went out to Mr.
Foster and he was putting them
in line, single file. They were
not coming straight. I went
back to my place and there was
such a crowd coming that we
had to keep them moving. I
kept looking down at the Presi-
dent; could hear him passing a
remark to each and every one
that passed by him. Could hear
him distinctly, they were com-
ing along there. It wasn't two
seconds that I got in the line
until I heard the shot. I was
looking directly that way. I
was looking at the President.
Yes, sir. Right at him. I heard
the report, and I was kind of
dumbfounded. I couldn't under-
stand it, and then I heard an-
other bang. I could see the
smoke. There was an opening
there, and I jumped at that man
there. Saw the smoke coming
right from his hand. I jumped
at him and knocked him over
against somebody. When I
knocked him he didn't go down

until I made a grab for his arm
and took the revolver, which I
turned over to the corporal of
my detail. This is the revolver
I took from the hands of this
prisoner.

Louis Neff. Was detailed with
the 73d Company here to attend
the President at the reception on
the 6th of September last at the
Temple of Music. I was sta-
tioned on the oppsite side of the
President about four yards on
his left. Two shots were fired,
one right after another, and I
looked right across into the line
and here was the pistol. It was
up this way (indicating) ; and I
put my one hand this way and
tried to get hold of it myself. I
seen I couldn't do any good, and
I thought I would break the
hold. I saw one of our men had
a good grasp right over what
you call the chambers. I saw
another artilleryman had it. I
saw I couldnt get it, and I
beared down on the man's hand
here, grasping his hand close up
this way, and I fell on my knee.
I paid no more attention. I
thought if we got the revolver
they could take care of the pris-
oner. Will swear it was in his
right hand. I didn't see the
prisoner at all. I saw him
after. I recognized the man
afterwards, but I couldn't recog-
nize him in the crowd. I only
saw somebody's hand with a re-
volver in it and I tried to get it.

Louis Bertschey. Am a cor-
poral in the 73d Coast Artillery,
stationed at the Pan-American
Exposition this summer. Was
detailed to take command of
men to go to the President's re-
ception. Ten privates. We were
ordered to report to Major Bab-
cock and he told me how to sta-

90

XIV. AMERICAN STATE TRIALS.

tion the men. Major Babcock
ordered me to put two men on
the right of the President, two
on the left, and six men directly
in front of the President. I my-
self took a station directly in
front of the President. He faced
me. After the crowd commenced
to come in we closed up to make
the aisle narrower and keep the
people in single file. In about
five minutes, I should think,
after the reception had begun, I
heard two shots fired out in rap-
id succession. I turns around
and see the prisoner with a re-
volver in his hand and his hand
up in that direction (indicat-
ing). It was smoking — some-
thing white covered partly over
the revolver. I rushed over to
the President — I grabbed the
man by the shoulders and pulled
him backwards. Previous to this
O'Brien and Neff had ahold of
his arm. As I pulled him over
backwards, O'Brien wrenched
the pistol from his hand and we
all fell to the floor. I put my
right knee on his throat, my
hand underneath his coat. And
the crowd rushed in. I hollered
to the crowd to stand back as he
was my prisoner. There was
some gentleman with a silk hat
grabbed hold of me from the
rear and carried me over and
forced me over to the opposite
side of the railing. He let go of
me. I saw the President stand-
ing there — he was very pale —
looking down at the struggling
mass on the floor.

Saw O'Brien. He was backed
off with one or two, possibly
three, Secret Service men de-
manding the pistol from him. I
goes over to where he was and
told him not to give up the pis-
tol. He said then he would give

it up to me, and some of the
Secret Service men demanded
the pistol from me. I would not
give it up, stating that I would
turn it over to my commanding
officer. That was Captain Wis-
ser. I sent a messenger to no-
tify him. He arrived in about
fifteen minutes and I turned the
revolver over to him. Before
turning it over I put my initials
on it. (Mr. Penney hands re-
volver to witness.) That is my
initials. This is the same re-
volver Private O'Brien turned
over to me.

Harry F. Henshaw. Am Su-
perintendent of music of the
Pan-American Exposition and
have charge of the Temple of
Music. At the time of the shoot-
ing was about five feet to the
right of the President. Had in
view the line of people as they
came up towards the President.
I could also see the President
very well. I noticed this man,
the prisoner here, in the line ap-
proaching the President; noticed
he carried his right hand above
the abdomen, close to the body,
bent at the elbow. Noticed the
hand was bandaged but did not
pay any more attention to it.
As he drew near the President
he extended his left hand to the
President. I saw the President
extend his hand as if to shake
hands with him, when like a
flash I saw this man push the
President's hand aside with his
left hand — and kind of pushed
forward. At the same instant
two shots rang out in quick suc-
cession. I did not see any flash
from the gun, but I saw the
handkerchief or bandage smok-
ing. I jumped over the rail
and, as I was getting over, no-
ticed two artillerymen or two

LEON F. CZOLGOSZ.

19

soldiers had grabbed this man
and were bearing him down. At
the same instant there was a
dozen or more who crowded
around and struggled to get at
the man also. When I got to
the bunch I could see nothing
of the prisoner. Saw Mr. Mil-
burn and some other gentleman
escorting the President to a
seat. I followed and I saw the
President seated. I saw some
guards carrying prisoner to my
office.

Cross-examined. I saw pris-
oner appraoching with his hand
up at his breast or abdomen. I
thought the hand was simply
sore and bandaged. Did not see
the pistol; his hand did not ex-
cite my suspicion. I saw people
with handkerchiefs in their
hands; capes over their arms.

John Branch. I had charge
of the toilet rooms in the Tem-
ple of Music. On this occasion
when the shooting occurred, I
was about eight feet left of the
President, outside of the aisle.
This man he got near me and I
noticed a handkerchief in his
hand. I seen him when he put
his hand like this in his pocket
(indicating) and it came out
and his hand was in like that.
He had his hand like that on
his waist; his other was over
his abdomen. When he got near
the President it seemed as
though he meant to shake hands
with the President, and some-
how— how he done it I don't
know exactly — but anyhow he
looked as if he meant to shake
hands with the President; but I
saw a report and the fire, and
then I saw the second report
and the fire, and I saw the hand-
kerchief on fire; and then after
that I saw the man when they

began to get this man. I heard
someone say, "Oh, they have
shot the President." An artil-
leryman got him first, and at
that time the man was almost
about going down in the crowd,
and one of the artillerymen
grabbed him by the leg. At that
time the man was on the ground.
Then I turned to see the Presi-
dent. That is all I saw of the
shooting.

Mr. Titus. Did you hear the
President make any remark or
say anything? When the Presi-
dent jumped after the second
fire, from one of those big tubs
the trees were in, and staggered
over to the second one and then
stood up, I heard him say, "Be
easy with him, boys." That is
all I heard him say.

Captain James F. Yallely. Am
Sergeant of detectives, New York
City, and have charge of the de-
tective bureau at the Pan-Amer-
ican Exposition. I went with
prisoner from the Pan-American
Exposition to Police Hearquar-
ters. I took him up to the cell
at Police Headquarters, Buffalo.

I sat alongside of him in the
cell on the cot, where the pris-
oners sleep. I said to him, "Do
you smoke?" He said "Yes, sir."
I handed him a cigar and lit it
for him and lit one myself. I
asked him for his name. He
said "My name is Fred Nieman."
He speled it "N-i-e-m-a-n". I
then asked him how old he was.
He said "28." I said "Where
were you born?" He said "De-
troit, Michigan." I said, "Where
were your parents born?" He
said, "I am a Polish German."
I said, ""What do you do for a
living?" He said, "I am a black-
smith." I said, "How long have
you been in Buffalo?" He said,

192

XIV. AMERICAN STATE TRIALS.

"Since last Saturday." I said,
"Where do you live?" He said,
"1025 Broadway." I said, "What
is the number of your room?"
He said, "The room I think is
No. 8." I said, "Why did you
shoot the President?" He said,
"I only done my duty." I said,
"Why?" and he and I were sit-
ting together on the bench
where the prisoners lay, and he
turned his head and looked at
me and he hesitated. I said,
"Are you an anarchist?" He
said, "Yes, sir." That is all the
conversation I had with him.
There were present in the cell
with us detective Solomon and
the assistant commandant at the
Exposition, Major Robertson.

William S. Bull. Am Super-
intendent of the Buffalo Police
Department; was present on the
night of September 6th when
prisoner was at headquarters.
Heard him make certain state-
ments in reference to the shoot-
ing of the President. No threats
were made to him or offers of
immunity of any kind. No in-
ducement held out to him. He
said he knew Mr. McKinley, the
President, that when he shot
him he knew who he was shoot-
ing, that he shot him because he
believed it was his duty to
shoot him; that he had been to
the Pan-American Grounds on
several occasions prior to the
President's visit to Buffalo; that
he was on the Exposition
grounds the day the President
delivered his speech, and stood
near the speaker's stand; that
he went there with the deter-
mination to kill the President.
He did not intend to kill him
the day that he delivered his
oration. He knew the President
was to visit Buffalo and be at

the Exposition. He knew that
the President was going to the
Falls and that he went to the
Falls the same day the Presi-
dent was there. He did not in-
tend to kill the President at the
Falls. He knew the President
was to hold a reception in the
Temple of Music, and he in-
tended to be present at the re-
ception, and he was there; that
he took his place in line with
the other people who were at-
tending the reception, for the
purpose of killing the President.
He carried his revolver in his
right hand pocket and over it was
his pocket handkerchief, and in
describing it he illustrated it.
The gun was in the pocket, the
pocket handkerchief over it, and
he did not remove the gun from
his pocket until he was within
the Temple of Music; he then
took the gun and handkerchief
together from his pocket, the
gun being concealed, and as he
went into the door arranged his
handkerchief so that the gun
could not be seen, carried his
hand in this position with the
fore finger of his hand upon the
trigger. He passed along with
the other people until he
reached the President and the
President was about to extend
his hand to him, when he fired
twice. Asked why he didn't
shoot more, he said because he
didn't have the opportunity,
they fell upon him so suddenly,
so quickly, and bore him to the
ground that he had no oppor-
tunity to fire again. This state-
ment he repeated upon several
different occasions, and prac-
tically the same as the state-
ment he made the first time that
I talked with him.
He said that he had had it in

LEON F. CZOLGOSZ.

193

contemplation for some time.
That he had planned the shoot-
ing, knew what he was going to
do, had firmly made up his mind
to kill the President, and went
to the Exposition grounds for
that purpose; that he did it be-
cause he thought it was right, it
was his duty. He was asked if
he was an Anarchist, he said
that he was, that he believed he
was doing right in killing the
President. He said he had taken
up the subject of Anarchy about
seven years ago; that he was 28
years old, and when he was 21
he began to take up the subject
of Anarchy. The papers that
he had read had been principal-
ly Anarchistic papers, Socialist
papers, and books relating to the
subject of Anarchy. He had
also attended meetings in differ-
ent places, heard various people
talk upon the subject of An-
archy, and he believed what he
had heard and what he had been
told, and believed that he was
right. Most of the meetings he
attended were in Cleveland, at
170 Superior street, but some-
times he used the word "Ontario
street," and sometimes "Superi-
or," but I think the number was
170 Superior street.

He had heard Emma Goldman
talk, he had heard — well there
were some names — I think a man
by the name, something like
Zolosman, a Polish man, a man
who edited a paper in Cleveland,
and a number of other speakers.
He also knew a man in Chicago
by the name of Izaak, who pub-
lished a paper called "The Free
Society." He had talked with
this man upon the subject and
had read his paper. He told me
that he made a special trip to
Cleveland at one time to buy a

paper that was published there,
as he wished to read it.

He did not believe in our form
of Government, he believed only
in the government as taught by
the Anarchists. He had no be-
lief in church. He had been a
Roman Catholic, but had had
nothing to do with the church in
some time because he did not
believe their teaching. He did
not believe in marriage, he was
a free lover. He told me of his
father and mother; his father
had been married a second time;
that they lived near Cleveland
at a place called Warrensville.
His father had a small piece of
ground that he used to farm. He
had several brothers and sisters,
that he had worked in the wire
works near Cleveland; had also
worked as a laborer and as
blacksmith helper at different
times; he said he went to the
Exposition Grounds for the ex-
press purpose of killing McKin-
ley the President. That he knew
him, that he had seen him be-
fore, and that when he shot he
knew he shot the President, he
intended to kill him.

Cross-examined. When he
was searched there was some
scraps of paper and a memoran-
dum book and $1.51 was handed
to me that he said belonged to
him. Of the $1.51 there was a
shirt and some handkerchiefs
and I think a collar bought out
of it. One paper had a memor-
andum on it, an address, and
there was a memorandum book
and I think also a letter from
the secretary of some society
that he belonged to, I think the
Golden Eagle, a sort of letter of
identification. They were turned
over to the District Attorney.

His head was erect and he

194

XIV. AMERICAN STATE TRIALS.

looked me in the eye and his
language was intelligible. He
spoke with a very slight accent
and sometimes without any ac-
cent at all, and used compara-
tively good language. He did
not volunteer any answers, he
answered the questions that
were put to him, and sometimes
after he answered a question he
would correct it.

To Mr. Penney. On Saturday
morning a man named Walter
Nowak came to Police Head-
quarters, met the Assistant Su-
perintendent, Mr. Cusack, and
said he would like to see this
man, he thought he knew him.
Nowak was brought into the pri-
vate office of the Superintendent
of Police and immediately recog-
nized Czolgosz, and said he knew
him in Cleveland. He said he
was employed in a printing of-
fice in Cleveland, that Czolgosz
was there and they got quite
friendly, and that he knew his
family. He said to him "You
know me well, Czolgosz, I have
always been a friend of yours.
Why did you do this? Why did
you commit this crime? Why
have you committed an act that
is going to bring disgrace upon
the Polish race? Why have you
committed this crime that
brings disgrace on your father
and mother and entire family?"
The conversation was in that
strain for some time, to which

prisoner made no response but
simply smiled. Nowak asked
him if he hadn't always been
his friend. He said "I don't
know whether you have been a
particular friend of mine or
not." Nowak said then, "Haven't
I taken you to the theatre fre-
quently?" "Yes, you have taken
me to the theatre on several oc-
casions; I don't know as that
is any particular act of friend-
ship." He said, "You and I be-
longed to the same society, at-
tended the meetings together,
but it became so radical, the talk
was so radical I gave it up, I
couldn't stand for it, I wouldn't
listen to it."

Nowak also says, "I am a Re-
publican, I am not a Socialist or
Anarchist, I am a Republican."
The prisoner says, "Oh, yes, you
are a Republican for this (indi-
cating with his fingers)." Mr.
Penney asked him "what do you
mean by that?" He said "I
mean by that that Nowak is a
Republican for what there is in
it, the money he can get out of
it."

He was asked if he wished to
see a lawyer, and if he had any
friends he would like to see, if
he wished to see his father or
his mother. He said he didn't
wish to see a lawyer, didn't
need a lawyer, that he had no
friends and did not care to see
his father or mother.

Mr. Penney. The People rest.

Mr. Lewis asked Czolgosz if he would go on the witness
stand. The Prisoner shook his head.

Mr. Lewis. If your Honor please, the defendant has no
witnesses that he will call, so that the testimony is closed at
the close of the testimony of the People. We are somewhat

LEON F. CZOLGOSZ. 195

embarrassed, disappointed, in the People's testimony clos-
ing at this point. My associate and myself have not had very
much consultation as to the course to be pursued, but from
the slight conversation that we have had we are inclined to
ask your Honor to permit both of us to make some remarks
to the jury in summing up this case. They will be on my
part very brief, and I presume so on the part of my
associate.16

is The question of the prisoner's sanity was not raised by the
defense for the following reasons:

Within a few hours after the crime was committed the District
Attorney placed the prisoner under the observation of three experts
in mental disease, Dr. Joseph Fowler, Police Surgeon; Dr. Floyd S.
Crego, Professor of Insanity and Brain Diseases in the University of
Buffalo, and Dr. James W. Putnam, Professor of Nervous Diseases
in the University of Buffalo. Later (see ante p. 168) on the appli-
cation of the counsel for the defense and with the free consent of
the District Attorney, two eminent experts who had been brought
to the city by the defense and whose fees were paid by the prose-
cution, were permitted to have free access to the prisoner for the
purpose of passing on his mental condition. These were Dr. Carlos
F. MacDonald, Professor of Mental Diseases and Medical Juris-
prudence in the University and Bellevue Hospital Medical College
and ex-President of the New York State Commission in Lunacy, and
Dr. Arthur W. Hurd, Superintendent of the Buffalo State Hospital
for the Insane.

The experts on both sides had free access to him for several
weeks, both those for the People and the defense, conferred freely
together and the proceedings had the effect of a commission of five,
three for the prosecution and two for the defense, to determine the
prisoner's mental condition. They unanimously reported him sane.

These reports, which were not put in evidence at the trial, are as
follows :

Report of Drs. Joseph Fowler, Floyd S. Crego and James W. Put-
nam, experts for the People.

The early opportunity afforded us to examine Czolgosz, such ex-
aminations beginning but a few hours after the commission of the
crime, while he was still uninformed of the fate of his victim or had
time to meditate upon the enormity of his act, aided us materially
in our work.

The prisoner answered questions unhesitatingly during the first
three examinations. After this he became more cautious and less
communicative when interrogated as to the crime. From Septem-
ber 10th he never volunteered any information to us and answered
only in monosyllables except to his guards, to whom he talked
freely. His general appearance was that of a person in good health,

196 XIV. AMERICAN STATE TRIALS.

Report of Dr. Carlos F. MacDonald^ and Dr. Arthur W. Hurd, ex-
perts for the prisoner. "On September 19, 1901, I, Dr. C. F. Mac-
Donald, received a telegram resquesting me to meet Mr. Adelbert
Moot, President of the Erie County Bar Association, in Buffalo,

complexion fair, pulse and temperature normal, tongue clean, skin
moist and in excellent condition. Pupils normal and react to light;
reflexes normal; he never had serious illness, does not drink to
excess, although drinks beer about every day; uses tobacco mod-
erately, eats well, bowels regular. Shape of the head normal as
shown by the diagram obtained by General Bull, Superintendent of
Police, with a hatter's impress.

The face is symmetrical; one eyebrow was elevated as it had
been cut some years ago by a wire while he was working in a fac-
tory. There was also a small scar in the left cheek due to a slight
injury while at work.

At our first interview, held September 7th, he made the follow-
ing statements during a lengthy examination by all of the three
examiners:

"I don't believe in the Republican form of government and I don't
believe we should have any rulers. It is right to kill them. I had
that idea when I shot the President and that is why I was there.
I planned killing the President three or four days ago after I came
from Buffalo. Something I read in the Free Society suggested the
idea. I thought it would be a good thing for the country to kill
the President. When I got to the grounds I waited for the Presi-
dent to go into the Temple. I did not see him go in, but someone
told me he had gone in. My gun was in my right pocket with a
handkerchief over it. I put my gun in my pocket after I got in the
door; took out my gun and wrapped the handkerchief over my
hand. I carried it that way in the row until I got to the President;
no one saw me do it. I did not shake hands with him. When I
shot him I fully intended to kill him. I shot twice. I don't know
if I would have shot again. I did not want to shoot him at the
Falls; it was my plan from the beginning to shoot him at the
Temple. I read in the paper that he would have a public reception.
I know other men who believe what I do, that it would be a good
thing to kill the President and to have no rulers. I have heard
that at the meetings in public halls. I heard quite a lot of people
talk like that. Emma Goldman was the last one I heard. She said
she did not believe in government nor in rulers. She said a good
deal more. I don't remember all she said. My family does not
believe as I do. I paid $4.50 for my gun. After I shot twice they
knocked me down and trampled on me. Somebody hit me in the
face. I said to the officer that brought me down, "I done my duty."
I don't believe in voting; it is against my principles. I am an
anarchist. I don't believe in marriage. I believe in free love. I
fully understood what I was doing when I shot the President. I
realized that I was sacrificing my life. I am willing to take the
consequences. I have always been a good worker. I worked in a

LEON F. CZOLGOSZ. 197

New York, on the following morning. On my arrival in Buffalo
the next day Mr. Moot informed me that he had sent for me for
the purpose of requesting me to inquire into the mental condition
of Leon F. Czolgosz, confined in the Buffalo jail under indictment
for the murder of President McKinley, and whose trial was to begin
on the following Monday. Mr. Moot further stated in substance

wire mill and could always do as much work as the next man. I
saved three or four hundred dollars in five or six years. I know
what will happen to me — if the President dies I will be hung. I
want to say to be published — 'I killed President McKinley because
I done my duty.' I don't believe in one man having so much ser-
vice and another should have none."

On the second day's examination we covered about the same
ground in order to test his memory and compare his statements.
We found his memory perfect, and his statements almost identical.
We gained some further information that for many months he had
been an ardent student of the false doctrine of Anarchy; that he
had attended many circles where these subjects were discussed.
He related how a friend of his had broken away from the circle
because he had changed his views and did not agree with him and)
the others in their radical ideas of government. He had heard
Emma Goldman lecture and had also heard lectures on free love
by an exponent of that doctrine. He had left the church five years
ago because he said "he didn't like their style." He had attended
a meeting of the Anarchists about six weeks ago, and also in July.
He met a man in Chicago about ten days ago who was an Anarchist
and had talked with him. The Friday before the commission of this
crime he had spent in Cleveland, leaving Buffalo where he had been
for two or three weeks and going to Cleveland. Said he had no
particular business in Cleveland. "Just went there to look around
and buy a paper."

The circle he belonged to had no name. They called themselves
Anarchists. At every meeting they elected a chairman and usually
it was one man. "He was a sort of spokesman for the crowd. This
friend of mine who left the circle, I don't think much of. I don't
like a man who changes around like he did. I like a man to have
a fixed purpose and one who sticks to his belief. At this circle we
discussed Presidents and that they were no good, but didn't say
that they must be killed; just said that they were no good." Dur-
ing this examination the prisoner was very indignant because his
clothing was soiled at the time of his arrest and he had not had an
opportunity to care for his clothing and person as he wished. He
refused to demonstrate again how he covered his weapon with a
handkerchief because his was soiled and bloody. When given a
clean one he showed at once the method of concealing the weapon
and how he held it. His desire to keep himself tidy, demonstrated
that he was not careless in dress and appearance as are most insane
persons. He requested clean clothing, and as he had a small amount
of money, a shirt and two handkerchiefs were purchased for him

198 XIV: AMERICAN STATE TRIALS.

that three local experts had already examined the prisoner for the
District Attorney, but in view of the enormity of the offense and
the fact that there obviously could be no legitimate defense other
than insanity, it was deemed important, in the interests of justice,
that his mental condition should be investigated by other experts
acting in behalf of the defense, or at least independently of the
prosecution to the end that the prisoner should be accorded every

with it. "When they were brought in, the change was shown him.
He instantly turned to the officers Aid said, "How is that? Don't
I get more change?" The cost of the articles was told him and he
said, "Oh, that's all right then." Said he would have slept well last
night but for the noise of the people walking about. He had heard
several drunken people brought to the station at night. Said he felt
no remorse for the crime which he had committed. Said he sup-
posed he would be punished but every man had a chance on a trial;
that perhaps he wouldn't be punished so badly after all; his pulse
on this occasion was 72; temperature normal; not nervous or ex-
cited.

On September 9th we observed a marked change in his readiness
to answer questions. Many of the questions asked he refused to
answer. He denied that he had killed the President or that he
meant to kill him. Seemed more on his guard and refused to ad-
mit that he shot the President. He persisted in this course until
nearly the close of the interview and until we told him that it was
too late for him to deny statements that he had made to us. He
then said "I am glad I did it."

At all subsequent interviews he declined to discuss the crime in
any of its details with us but would talk about his general condi-
tion, his meals, his sleep and how much he walked in the corridor
of the jail or upon any other subject not relating to the crime.
From the daily reports filed with us we note that he talked freely;
that his appetite was good; that he enjoyed his walks which he took
in the corridor of the jail. He told his guards he would not talk
with his lawyers because he did not believe in them and did not
want them.

In conclusion as a result of the examinations of Czolgosz and of
the reports of his watchers in the jail, we conclude that he was
sane at the time he planned the murder and when he shot the Presi-
dent. We come to the conclusion from the history of his life as
it came from him. He had been sober, industrious and law-abiding;
till he was twenty-one years of age he was as others in his class, a
believer in the Government of this country and of the religion of
his fathers. After he cast his first vote he made the acquaintance
of Anarchistic leaders who invited him to their meetings. He was
a good listener and in a short time he adopted their theories. He
was consistent in his adherence to Anarchy. He did not believe in
Government, therefore he refused to vote. He did not believe in
marriage because he did not believe in law. He killed the President
because he was a ruler and Czolgosz believed as he was taught that

LEON F. CZOLGOSZ. 199

legal right, there being no desire to convict him if he were not
mentally responsible, and that I had been selected for this respon-
sible duty. With a deep sense of the responsibility involved, I con-
sented to act, provided it should be distinctly understood that I
was not there as a partisan expert in behalf of either side, but
simply in a professional capacity to aid in determining the real
mental state of the prisoner, and provided further that my selection
would be acceptable to the eminent counsel whom the Bar Asso-
ciation had selected for the defense, should they decide to accept
that duty, a matter which was then undecided. On the following
morning — Saturday — Mr. Moot informed me that the gentlemen re-
ferred to had consented to act and invited me to meet them in con-
ference, which I did, and which resulted in their requesting me

all rulers were tyrants; that to kill a ruler would benefit the people.
He refused a lawyer because he did not believe in law, lawyers or
courts.

We come to the conclusion that in the holding of these views
Czolgosz was sane, because these opinions were formed gradually
under the influence of Anarchistic leaders and propagandists. In
Czolgosz they found a willing and intelligent tool; one who had
the courage of his convictions regardless of personal consequences.
We believe that his statement, "I killed the President because I done
my duty," was not the expression of an insane delusion for several
reasons. The most careful questioning failed to discover any hal-
lucinations of sight or hearing. He had received no special com-
mand; he did not believe he had been specially chosen to do the
deed. He always spoke of his motive for the crime as his duty;
he always referred to the Anarchists' belief that the killing of rulers'
was a duty. He never claimed the idea of killing the President
was original with him, but the method of accomplishing his purpose
was his and that he did it alone. He is not a case of paronoia, be-
cause he has not systematized delusions reverting to self and be-
cause he is in exceptionally good condition and has an unbroken
record of good health. His capacity for labor has always been good
and equal to that of his fellows. These facts all tend to prove that
the man has an unimpaired mind. He has false beliefs, the result
of false teaching and not the result of disease. He is not to be
classed as a degenerate because we do not find the stigmata of de-
generation; his skull is symmetrical; his ears do not protrude, nor
are they of abnormal size, and his palate not highly arched.
Physically he has not a history of cruelty or of perverted tastes and
habits. He is the product of Anarchy, sane and responsible.

17 MacDonald, Carlos Frederick. Born Niles, O., 1845; Grad. Belle-
vue Med. Coll. (M. D.), 1869; M. A. (Hon.) Union Coll., 1894; Made
a specialty of Nervous diseases and was consulting physician to
many hospitals; Supt. Binghampton Asylum for Insane, 1879; State
Asylum for Insane, 1881-1914; a frequent contributor to medical
journals and proprietor of Dr. MacDonald's Sanitarium, Central
Valley, N. Y.

200 XIY. AMERICAN STATE TRIALS.

to proceed at once to examine into the prisoner's mental condition
and to report my conclusion to them as soon as I had reached one.
They also assented readily to my proposal to invite Dr. Arthur W.
Hurd to become associated with me professionally in the case, Dr.
Hurd being Superintendent of the Buffalo State Hospital for the
Insane and a competent alienist of large experience in mental dis-
eases. It was also agreed that we should be allowed to confer
freely with the District Attorney and with the experts for the
people, after completing our personal examination of the prisoner.
Being unable to establish communication with Dr. Hurd before
evening of that day, and in view of the short time intervening be-
fore the trial, I decided to make a preliminary examination of
Czolgosz alone, and did so that afternoon, in the District Attorney's
office, first disclosing to him my identity and the object of my inter-
view and informing him of his legal right to decline to answer any
question I might ask him.

I examined him again on the following day — in the jail jointly
"with Dr. Hurd, and in the presence of one of his guards who was
questioned at length, respecting his observations of him in the jail,
as to his habits of eating, sleeping, talking, reading, etc. We sub-
sequently interviewed the District Attorney and the Superintend-
ent of Police, General Bull, who gave us all the facts and informa-
tion in their possession respecting the case. The statement which
Czolgosz made to the District Attorney shortly after his arrest
throws much light on his mental condition on the day of the crime,
but that official deemed it his duty to refuse to allow me to publish
it. We also conferred at length with the people's experts — Drs.
Fowler, Crego and Putnam — who stated to us separately and in
detail their observations and examinations of him. We also ob-
served him carefully in the court room throughout the trial.

After our examination of Czolgosz, we reached the conclusion, in-
dependently of each other, that he was sane and we so informed his
counsel before the trial began.

As his family relatives resided in a distant state and were not
accessible for interrogation, we were unable to obtain a history of
his heredity beyond what he himself gave us.

Czolgosz, as he appeared at the time of my examinations of him
at Buffalo, may be described as a well nourished, rather good look-
ing, mild mannered young man with a pleasant facial expression;
features, regular; face, smooth shaven and symmetrical; mouth and
ears well formed and symmetrical; teeth, none missing, but in poor
condition from neglect; tongue, clean; palate, fauces and uvula,
normal in appearance; eyes, blue and normal in expression; pupils,
equal in size and normally responsive to light and accommodation;
hair, light brown and slightly curly; stature, medium — five feet
seven and a half inches — and weight — estimated — about 140 pounds.
The extremities were in all respects normal; was a slight deviation
of the nose due to a blow which he received at the time of the
assassination, and a superficial perpendicular cicatrix on the left
face which he said was the result of a slight injury he received when

LEON F. CZOLGOSZ. 201

working in a barbed wire factory. There were no tremors or twitch-
ings of the facial muscles, tongue or hands. The pulse and tem-
perature and skin were normal, as also were the special senses,
knee reflexes, coordinating power and the sensory and motor func-
tions. Finally, a careful inspection of the entire visible body failed
to reveal the presence of any of the so-called stigmata of degener-
ation. The almost perfectly symmetrical development — especially
of the head and face — is a noteworthy feature in Czolgosz' case, al-
though had deviations been found the fact would have had little
weight as tending to show mental disease or degeneracy, as marked
asymmetries, both cranial and facial, are frequently observed in
persons who are quite sane and above the average in mental
capacity.

In answer to questions he stated, in substance, that he was born
in Detroit, Michigan, of Polish parents; that he was twenty-eight
years of age, unmarried and a laborer by occupation; that he was
a Romanist, originally, but had abandoned that faith several years
ago because he no longer believed in it; that he attended the com-
mon schools as a boy and had learned to read and write; that he
had used beer and tobacco, but not to excess; that he had done
various kinds of unskilled labor such as farming, factorying, etc.;
that his mother was dead and his father, one brother and a married
sister were living; that so far as he knew there was no insanity
in his family, and that he had not suffered any serious illness or
injury during his life time; that he had never been subject to fits,
spasms or vertigo; that he usually ate and slept well, and that his
bowels were always regular.

Careful inquiry failed to elicit any evidence of delusion, hallucina-
ation or illusion. When questioned as to the existence of enemies,
persecutions or conspiracies against him, he replied in the negative.
He evinced no appearance of morbid mental depression, morbid
mental exaltation, or of mental weakness or loss of mind; nor did
he display any indication of morbid suspicion, vanity or conceit, or
claim that he was "inspired" or had "a mission to perform," or that
he was subject to any uncontrollable impulse. In fact, as regards
the existence of evidences of mental disease or defect, the result of
the examinations was entirely negative. On the contrary, every-
thing in his history as shown by his conduct and declarations, points
to the existence in him of the social disease, Anarchy, of which he
was the victim."

Dr. MacDonald, after watching him from the day of his sentence
to that of his execution, and having taken part in the autopsy,
made this second report on the question:

"My last examination of Czolgosz was made jointly with Dr.
Gerin, physician of Auburn Prison, the evening before his execu-
tion. This examination revealed nothing either in his mental or
physical condition which tended to alter the opinion I gave to his
counsel at the time of his trial, namely, that he was sane — an
opinion which was concurred in by all of the official experts on
either side, namely, Drs. Fowler, Crego and Putnam, for the people,

202 XIV. AMERICAN STATE TRIALS.

and Dr. Hurd and myself for the defense, also by Dr. Gerin, the
only other physician who examined him. Furthermore, the pris-
oner's manner, appearance and declarations in the execution room,
together with the post-mortem findings, corroborated most con-
clusively the original opinion as to sanity — while his dying declar-
ations that he killed the President because he regarded him as an
enemy of the good people — the good working people, and that he was
not sorry for his crime — all tend to stamp him as an Anarchist.
In fact, his bearing and conduct from the time of the commission
of the crime to his execution were entirely consistent with the teach-
ings and creed of Anarchy. Moreover, neither the three careful
personal examinations which I made of him — one alone, one with
Dr. Hurd and one with Dr. Gerin — the measurements of his body
by the Bertillon system nor the post-mortem findings, disclosed the
slightest evidence of mental disease, defect or degeneracy. This
opinion is confirmed by the people's experts who repeatedly exam-
ined him and observed him from time to time, from the day of the
assassination to the close of the trial, and by Dr. Gerin, the physi-
cian of Auburn Prison, who observed him carefully during the four
weeks that he was in that institution awaiting execution. Dr.
Gerin has had exceptional opportunity for the study of criminals,
both sane and insane, in his capacity as Prison Physician and, pre-
viously, as Assistant Physician at the State Hospital for the Crim-
inal Insane.

His refusal to talk with his counsel was perfectly consistent with
the views he expressed to the District Attorney, after his arrest,
that he did not believe in the law and wanted no counsel. It was
entirely consistent with his expressed disbelief in government and
in law, and his declaration that he shot the President with a clear
knowledge of the nature and consequences of the act; and while
he pleaded guilty in court and also proclaimed when he went to his
death his reason for committing the crime, and declared that he
was not sorry therefor, in a manner which clearly implied that he
regarded the act as a justifiable one, he did not claim that it was
not a crime on his part as paranoiacs usually do, nor did he in any
way indicate that he regarded himself a victim of conspiracy or per-
secution. On the contrary, he declared — to the people's experts —
that he fully understood what he did when he shot the President
and was willing to take the consequences, that "I know what will
happen to me; if the President dies I will be hung." It may be
said that Czolgosz' belief which he expressed as he went to his death
that the President was an enemy of the "good working people" was
a delusion, and such it undoubtedly was in the broadest sense of
that term: that is, it was a false belief, but it was in no sense an
insane delusion or false belief due to disease of the brain. On the
contrary, it was a political delusion, so to speak — a false belief
founded on ignorance, faulty education and warped — not diseased —
reason and judgment — the false belief which dominates the politico-
social sect to which he belonged and of which he was a zealot, who
in common with his kind believes that all forms of government are

LEON F. CZOLGOSZ. 203

wrong and unnecessary — a body of mal-contents whose teachings
oppose all government and who advocate the use of violence to
destroy the existing social and civil order of things. By his own
admissions, Czolgosz was a devout Anarchist and a firm believer
in the principles of Free Society as taught by Emma Goldman —
of whom he was an ardent admirer — and others. These were the
beliefs which furnished the motives for the murderous deed.

That Czolgosz was an Anarchist and actuated in his crime by
the motives which spring from the teachings of that sect, are clearly
shown by: 1. His declarations after his arrest, namely, that he
did not believe in any form of government or law and that all rulers
were tyrants who ought to be put down. 2. His admissions to the
District Attorney that he was a member of anarchistic societies
or circles, and had frequently attended the meetings of the same;
also that he had been influenced in his views by the "lectures" of
Emma Goldman; and that when apprehended anarchistic literature
was found on his person, and 3. The recognition and commendation
which he has received at the hands of Anarchists at their meetings
both in this country and abroad since his death, several of these
societies having openly recognized him as such and lauded his
action.

The Anarchists' creed teaches that when one of their number is
selected to do a certain deed, he is to proceed about it quietly and
in his own way, taking no one into his confidence; that, having
accomplished the deed, if apprehended he shall not admit his con-
nection with any other members of the circle; that, if convicted
and sentenced to die he shall go to his death without revealing
his connection with others, resting secure in the belief that he will
be ever regarded by his associates as a martyr and a hero who died
in the discharge of a noble duty. The course and conduct of Czol-
gosz from the beginning down to his death are entirely in keeping
with this creed. And finally the cool and courageous manner in
which he met his death, and the fact that from the day of his
arrest until he died, he never uttered a word that could be used
against his accomplices — if he had any — and that he died — as
Anarchists who suffer the death penalty always die — without ut-
tering a word that would tend to incriminate any of his co-con-
spirators, tend to stamp him as an Anarchist.

In conclusion, the writer having viewed the case in all its aspects,
with due regard to the bearing and significance of every fact and
circumstance relative thereto that was accessible to him, records
his opinion unqualifiedly that Leon F. Czolgosz on September 6,
1901, when he assassinated President McKinley, was in all respects
a sane man — both legally and medically — and fully responsible for
his act."

Dr. Edward A. Spitzka, a distinguished surgeon who had charge
of the autopsy, afterwards wrote in a medical journal: is

is See, The Trial, Execution, Autopsy and Mental Status of Leon
F. Czolgosz (MacDonald and Spitzka). Ante page 164.

204 XIV. AMERICAN STATE TRIALS.

"The results of the necropsy can be summed up by saying that
Czolgosz was in excellent health at the time of his death. * * *
The question as to whether his body invested a healthy mind opens
up a wide topic for discussion which it is not entirely in the writer's
province to pursue. So far as our knowledge of the correlation of
brain-structure and brain-function extends, nothing has been found
in the brain of this assassin that would condone his crime for the
reason of mental disease due to intrinsic cerebral defect or distor-
tion. The brain-weight, though by itself unimportant, when consid-
ered in its other relations points to a good condition of the organ.
* * * The skull is not symmetrical, but the asymmetry is slight
and fully within the normal range of variation. An absolutely
symmetrical skull probably does not exist. * * * It is a prob-
able fact that certain oft-mentioned aberrations from the normal
standard of brain-structure are commonly encountered in some crim-
inal or degraded classes of society, and those who have attempted
to found a school of degeneracy have endeavored to explain crime
and social wickedness as due to the accidental persistence of lower
types of human organization. But these structural anomalies, so
far as they have been described in the brains of criminals, are too
few and too insufficiently corroborated to warrant us in drawing
conclusions from them. Various perversions or anomalies of mind
may exist in this class without presenting a uniform criminal type,
either from the sociological or the anatomic aspect. Of course, it is
far more difficult — and it is impossible in some cases — to establish
sanity upon the results of an examination of the brain, than it is
to prove insanity. It is well-known that some forms of psychosis
have absolutely no ascertainable anatomical basis; and the assump-
tion has been made that these psychoses depend rather upon circu-
latory and chemical disturbances. So far as this question touches
upon the brain and body of Czolgosz, there have been found abso-
lutely none of those conditions of any of the viscera that could
have been at the bottom of any mental derangement. Taking all
in all, the verdict must be socially diseased and perverted, but not
mentally diseased. The most horrible violations of human law can
not always be condoned by the plea of insanity. The wild beast
slumbers in us all. It is not always necessary to invoke insanity
to explain its awakening."

THE SPEECHES TO THE JURY.

Mr. Lewis. Gentlemen of the Jury: This being the first
time in over twenty years that I have had occasion to address
a jury as counsel in a case, you may imagine that I feel
somewhat in a strange position, especially in a case of the
importance of this. A great calamity has befallen our nation.
The President has been stricken down and died in our city.
It is shown beyond any peradventure of doubt that it was

LEON F. CZOLGOSZ. 205

at the defendant's hand that he was stricken down, and the
only question that can be discussed or considered in this
case is the question whether that act was that of a sane
person. If it was, then the defendant is guilty of the murder
and must suffer the penalty. If it was the act of an insane
man, then he is not guilty of murder but should be ac-
quitted of that charge and would then be confined in a luna-
tic asylum.

Much discussion and much talk has occurred in our midst
and has been called to my attention as to the propriety of
any defense being interposed in this case. Many letters
have been received by me since I was assigned with my asso-
ciates to defend this man, questioning the propriety of a
defense being attempted.19 You gentlemen know perhaps

19 The following is one of these letters:

"Sept. 17, 1901. To the Hon. Robt. Titus & L. L. Lewis. Gentle-
men: As the representative of 100 business men who asked the
Mayor for a permit to hold an indigantion meeting last Saturday-
evening, earnestly implore you on their behalf not to act as counsel
for the assassin Czolgosz. If you make an elaborate defense for
him you know how the whole people of the United States would
feel towards you (few people would take into consideration that it
was your duty — our outraged people would never be convinced that
justice to such a wretch could be given by an American citizen).
If you didn't succeed in doing him any good, your reputation is more
or less at stake and in any event gentlemen of your reputation from
your hearts cannot be compelled to act as counsel for one of the
vilest wretches that this great and glorious Nation has ever had
the misfortune to encounter. Your names as counsel for a wretch
who the whole world condemns, would go down into history — the
assassin has repeatedly said he didn't want counsel. Why disgrace
any American attorney's name in forcing him to do a duty (which
no man with a heart can do) which the assassin don't want from
a government he repudiates even to death. I implore you, Hon.
gentlemen, on behalf of the committee of 100, and the whole United
States, to refuse, under all conditions, to act as counsel for that
miserable wretch who even refused counsel from the easiest people
on the face of the earth, after robbing them of their beloved Presi-
dent. Again we implore you, or any other good American citizen,
from even extending a good word on his behalf — it would give me
the greatest pleasure on earth if T could only extend my hand of
greeting to the wretch as he did to the poor honored martyred
President. Respectfully yours, The Committee of 100. (Now the
committee of 500, and increasing every day.)"

206 XIY. AMERICAN STATE TRIALS.

how Judge Titus and myself came into this case. The posi-
tion was not sought by us but we appear here in performance
of a duty which we think devolved upon us notwithstanding
it is an exceedingly unpleasant one. His Honor the Judge
who presides upon this trial as Justice of the Supreme Court
sits here because the law makes it his duty to sit and pre-
side over this trial ; our very efficient and able District Attor-
ney is prosecuting this action because the law makes it his
duty to prosecute the action ; you gentlemen are sitting here
as jurors because you were commanded to appear here, and
under our system of jurisprudence it was your duty to sit
here and hear the testimony in this case and perform the
unpleasant duty of determining whether this man is to be
executed or whether he is to be acquitted. The defendant's
counsel appear here bcause under our system of jurispru-
dence no man can be placed upon trial for the high crime
of murder, the penalty of which is death, without the assist-
ance of counsel. The court has the power to designate, and it
is the duty of the counsel thus designated, to appear in the
case unless they can make some reasonable excuse and succeed
in being relieved of duty. Gentlemen, when we become mem-
bers of the legal profession we become members of the court.
We are compelled, if assigned to defend one who is charged
with committing a crime, to respond and accept the duty
unless we can present some reasonable excuse why we
should be excused, and, as I understand, if we arbitrarily
refuse to perform the duty which the court imposes upon
us, we are guilty of a misdemeanor and liable to be punished
by the court.

So that you see, gentlemen, if any simple-minded, thought-
less person should entertain the notion for a moment that
the counsel who appear in this case are doing something they
ought not to do, that person is laboring under a very serious
misapprehension as to the duties devolving upon a lawyer.

Everyone, no matter how enormous the crime that he may
have committed, is, under our laws, entitled to the benefit
of a trial. In a case of murder in the first degree he must

LEON F. CZOLGOSZ. 207

have a trial. You sat here and listened to the defendant's
plea of guilty when he was arraigned by the learned District
Attorney, but the law of our state will not permit a man
to plead guilty of such a crime as this. The law is so merciful
of the rights of its citizens that it will not permit a man to
plead guilty of the high crime of murder, so that even after
he had conceded his guilt in this case, it was incumbent upon
the court to insist that the trial should proceed and that the
People should establish, beyond a reasonable doubt, that
the defendant was guilty of the crime charged against him.
There are, in our community, individuals probably — not, I
hope, in very large numbers, but we know they are scattered
all over our country, who think that in a case like this, or even
in charges of much less enormity, that it is entirely proper
that the case should be disposed of by lynch law, by mob
law, and we can hardly take up a paper without learning that
in some part of this free and independent country, a country
where law prevails or should prevail, of a man having been
mobbed upon the suspicion or belief that he was guilty of
some crime. This state of things does not exist in our com-
munity, but it does in some parts of our country, as every
reading, intelligent man knows. It is charged here that our
client is an Anarchist, a man who does not believe in any law
or in any form of government, and there are, as we are told,
individuals who entertain that opinion, societies which enter-
tain that opinion. We all feel that such doctrines are danger-
ous, are criminal, are the doctrines that will subvert our
government in time if they are allowed to prevail. But,
gentlemen of the jury, while I firmly believe in that, I do not
believe that it amounts in danger to this country equal to the
belief that is becoming so common that men who are charged
with crime shall not be permitted to go through the form of
a trial in a court of justice, but that lynch law should take
the place of the calm and dignified administration of law in
our courts of justice. When that doctrine becomes sufficiently
prevalent in this country, if it ever does, our institutions will
be set aside and overthrown, and if we are not misinformed as

208 XIV. AMERICAN STATE TRIALS.

to the state of the mind of the public in some parts of our
country, the time is fast approaching when men charged with
crime will not be permitted to come into the court and submit
to a calm and dignified trial, but will be strung up upon a
tree, upon the bare suspicion sometimes of the fact that they
may have committed some crime. Why, it is not long since
I read in a paper that a colored man in the South was mobbed
and his life taken because he had insulted a white man. What
the insult was the newspaper did not say, but he had insulted
a white man and his life was taken because of that insult to
the white man. Now I suggest, gentlemen, that that class of
community who are crying out in our streets and who are
sending letters suggesting that a jnan charged with the
crime that this defendent is, should not be permitted to have
a trial before a court of justice, I submit that they are a
more dangerous class of community than the Anarchists about
whom we read so much. No, it is the duty of every American
citizen, of every good man, to stand firmly by the law, to put
his face against any idea that a man should be punished for
any crime until he is proven guilty in a court, beyond any
reasonable doubt.

My associates and myself are here to uphold the law. Some
weak-minded, foolish people entertain the notion that a law-
yer, when he appears in defense of a criminal, is in court
to obstruct the due administration of law, is in court to
raise every technicality that he can to prolong the trial and
to reverse any verdict which a jury may render, but no man
who understands and knows the better class of the members
of the bar entertains any such notion. My associates and
myself are here for the same purpose that the learned Dis-
trict Attorney is here — to see that this trial progresses in a
legal, orderly and proper manner, and, as I suggest, we must,
in every way possible, put down and suppress this feeling
that cases may be disposed of without the intervention of
courts of justice.

I remember, gentlemen, when I was a young man living in
the city of Auburn, studying my profession, that the news

LEON F. CZOLGOSZ. 209

came that a colored man had gone up upon the shore of the
Owasco Lake and there had murdered practically an entire
family by the name of Van Ness. The news came into the
town where I was at the time and it created an intense ex-
citement. The people gathered upon the street to hear the
news. In the course of the afternoon, after the commission
of the crime, it was understood that a colored man, Freeman,
had been arrested and was being brought to the city to be in-
carcerated in the jail. The people upon the street became
more and more excited. They began to talk about mobbing
the colored man when he should arrive — that he was not
entitled to a trial. Mr. William H. Seward, who was then
a resident of the city of Auburn, appeared upon the street
and counseled moderation, counseled the people to wait and
see whether the man was guilty of the crime, to permit him to
have a legal, lawful trial. But the people protested — "He is
guilty beyond any doubt; he must be disposed of at once."
Mr. Seward still insisted and they succeeded in incarcer-
ating Freeman in the jail. It soon became known that Mr.
Seward had volunteered, without any designation of the
court, had volunteered to defend the negro when he was put
upon trial, and then the indignation arose again that he
should interpose a defense in such a case as that, and that
far-seeing man, that statesman, who saw that there was an
opportunity to give an object lesson to the world as to the
proper disposition of such a case, stubbornly insisted that
he would defend the negro. He was put upon trial and for
two long months that trial proceeded; as I remember, it oc-
cupied some three weeks in obtaining a jury, and the trial
consumed at least two months, and I sat by during almost the
entire length of that trial and listened to the defense that
Mr. Seward interposed — not that he cared anything for the
negro, but he wanted to teach the people of the country the
sacredness of the law; he wanted to impress upon them the
importance of maintaining the law and putting down mob
violence.20

20 See, Trial of Freeman, 16 Am. St. Tr.

210 XIV. AMERICAN STATE TRIALS.

And this trial is a great object lesson to the world in that
regard. Here is a case where a man has stricken down the
beloved President of this country, in broad daylight, in the
presence of hundreds and thousands of spectators. If there
ever was a case that would excite the anger, the wrath of those
who saw it, this was one, and yet, under the advice of the
President, "Let no man hurt him," he was taken, confined
in our prison, indicted, put upon trial here, and the case
is soon to be submitted to you whether he is guilty of the
crime charged against him.

That, gentlemen, speaks volumes in favor of the orderly
conduct of the people of the city of Buffalo. Here was a man
occupying the exalted position of President of this great re-
public, a man of irreproachable character, a man against whose
character not the least stain was ever known, who had come to
our city to assist us in promoting the prosperity of our great
exposition. He submitted to being met by the people who
desired to see him, in order to help on this great enterprise
in which we have been interested, and he was stricken down
and died from the effects of the wounds. It has touched
every heart in this community and in the world, and yet we
sit here today in this room quietly considering the question
whether this man is responsible for the act which he com-
mitted, and the question, gentlemen, is one that you are
called upon to decide.

The law presumes that this man is innocent of the crime,
and we start, in investigating this case, with the assumption
that for some reason or other he is not responsible for the
act which he performed on that day. That is one of the mer-
ciful provisions of the law of this civilized state and it is a
provision of law which you must consider and which you
must permit to influence your minds until you are satis-
fied by the evidence in the case that that doubt has been
removed.

Now, gentlemen, we have not been able to present any
evidence upon our part. The defendant has even refused
on almost every occasion to even talk with his counsel; he

LEON F. CZOLGOSZ 211

has not aided us; so that we have come here under, as I
said to you, the designation of the court, to do what we can
to determine this important question which is to be sub-
mitted to you.

All that I can say, to aid you, is that every human
being has a strong desire to live. Death is a spectre that we
all dislike to meet, and here this defendant, without having
any animosity against our President, without any motive,
so far as we can see, personal motive, we find him going into
this building, in the presence of these hundreds of people,
and committing an act which, if he was sane, must cause
his death.

Now, could a man, with a sane mind, perform such an
act? Of course, the rabble in the street would say, "no
matter whether he is insane or sane, he deserves to be killed
at once ; ' ' but the law says, no ; the law says, consider all the
circumstances and see whether the man was in his right
mind or not. But one may say, "why, it is better that he
should be convicted, as a terror to others." That may be
so in some regards, but, gentlemen of the jury, if it could be,
if it can be that you find that this defendant was not re-
sponsible for the crime, for this act, you would aid in lifting
a great cloud from the hearts and minds of the people of
this country and of the world. If our beloved President had
met with a railroad accident coming here to our city and had
been killed, we should all regret very much, we should
mourn over the loss of such a just man, but our grief
would not begin to compare with the grief that we have now,
that he should be stricken down by an assassin. That adds
poignancy to our grief — it does in my case, to a very large
extent. But if you could find that he met his fate by the
act of an insane man, it would amount to the same as
though he met it accidentally, by some accident, and passed
away under such circumstances.

Now, gentlemen, I have said about all I care to say about
+his case. The President of the United States was a man for
whom I had the very profoundest respect. I have watched

212 XIV. AMERICAN STATE TRIALS.

his career from the time he entered Congress — twenty or more
years ago — until his last breath here in the City of Buffalo,
and every act of the man, so far as I could judge, has been the
act of one of the noblest men that God ever made. His
policy, we care nothing about that so far as we may differ
as to his policy, but his policy has always met with my
profoundest admiration in every respect. I have known
him not only as a statesman, but I have known him, through
the public press and otherwise, as a citizen, a man of irre-
proachable character, a loving husband, a grand man in
every aspect that you could conceive of, and his death has
been the saddest blow to me that has occurred in many
years.21

Mr. Titus. If the Court please, the remarks of my dis-
tinguished associate have so fully and completely covered the

21 "Turning to the jury, the venerable lawyer began to speak. It
was the first time in 20 years that he had addressed a jury. There
were old lawyers in the court room who, as they listened, recalled
by-gone days when the distinguished jurist was in the zenith of his
glory as a great trial lawyer. He spoke deliberately, impressively.
He stood, a picturesque figure, with snowy white hair and beard,
soft voice and gentle manner. He was garbed in black. Clearly
his task was not to his liking, but with his opening sentences he
drew the attention of all and held it, unbroken to the end. It
must have galled the assassin to hear himself and his crime used
as the pretext for so lofty and dignified and able a speech as Judge
Lewis made. Twice the speaker was compelled, by emotion, to
pause. His eulogy of the dead president was most affecting and
Judge Lewis stopped abruptly, his eyes filled with tears, overcome
by emotion. His voice wavered and broke with the last sentence
and he sat down with his handkerchief to his eyes." — The Buffalo
Express, Sept. 24, 1901.

Judge Lewis received after the trial, more than a hundred letters
from prominent lawyers and others and from different sections of
the country commending his defense of the prisoner and especially
his plea for maintaining the dignity of the law. From them the
editor has selected the following:

At my earliest convenience, I write, in behalf of the Erie County
Bar Association, to congratulate you upon the conspicuous ability
and fairness with which you discharged a disagreeable duty in the
defense of Czolgosz. By so doing, you distinguished yourself, your
city, your profession, and your brethren at the Bar, and, most of
all, you made your country your lasting debtor for the service ren-

LEON F. CZOLGOSZ. 213

ground and so largely anticipated what I intended to present
to the jury myself, that it seems entirely unnecessary for
me to reiterate what has already been said upon this sub-

dered in behalf of the law. Your defense of Czolgosz was in the

very spirit of the last words of President McKinley concerning him.

— ADELBERT MOOT, President Erie County Bar Association.

I enclose herewith a copy of a letter received from the Secretary
of War concerning the trial of Czolgosz and the dignified way in
which the case and the punishment of the prisoner, were conducted.
Very truly yours, B. B. Odell, Governor of New York.

"WAR DEPARTMENT.

(COPY) Washington, November 6, 1901.

The Honorable Benjamin B. Odell, Governor of New York. My
dear Sir: : — I beg you to accept and to convey to the officers charged
with the administration of justice in the State of New York, and
particularly in Erie County, an expression of satisfaction and ap-
proval upon the effective and dignified way in which the law has
been vindicated, and the ends of justice have been attained, in the
prosecution and punishment of the assassin Czolgosz. The Court,
the Prosecuting Attorney, the officers who had the prisoner in
charge — all appear to have performed their duties with effectiveness
and decorum, and particular credit seems due to the distinguished
gentlemen who, upon the request of the Bar of Erie County, under-
took the disagreeable task of protecting the legal rights of the
wretched culprit under the assignment of the Court.

The course of justice was swift, but measured. Protection against
lawless violence was shown to be consistent with the certain and
awful punishment of guilt. No opportunity for defense was with-
held ; but no opportunity for spectacular display, or the gratification
of vanity, which is so great an incentive to such crime, was af-
forded. I know that this has been appreciated by the representative
of New York in that Cabinet. I am authorized to say that Presi-
dent Roosevelt fully concurs in the sentiments which I have ex-
pressed. I remain my dear Governor, with great respect and es-
teem, Your obedient servant,

ELIHU H. ROOT, Secretary of War."

Permit a stranger to you to express his profound appreciation
that our country in its sore trial was so fortunate as to secure, in
the trial of the assassin of our great President, men of such char-
acter and ability as yourself and Judge Titus. The assurance which
this choice gave us that there would be no objectionable features
connected with the trial, has been fully sustained. I read your
address to the jury this morning with the deepest interest. It ought
to be published in every town of our country. It should be read in

214 XIV. AMERICAN STATE TRIALS.

ject, and we, therefore, rest with the remarks made by-
Judge Lewis.

District Attorney Penney. Gentlemen of the Jury: It is
hardly possible for any man to stand before his fellow-men
and talk without the deepest emotion concerning the awful
tragedy that has come upon the entire world. A remarkable
exhibition of feeling has just been made to you by the dis-
tinguished jurist who was forced by his duty as a citizen,

every school of the land. It is not only the profoundest wisdom,
but its form is a classic. Excuse my intruding myself upon you,
but I cannot restrain my impulse to thank you for your noble part
in this extremely trying situation. Very truly,

JAMES R. DAY, Chancellor Syracuse University.

As President of the Iowa State Bar Association, I would like very
much to have a copy of the Daily Press of your City, which con-
tains proceedings of the Czolgosz trial. I especially desire your
address to the Jury in that case. I congratulate you on the noble
effort you have made in the vindication of the law and the con-
demnation of lynch law. I congratulate the Bench and the Bar of
Buffalo on the speedy and equitable trial granted to this unfortu-
nate wretch. I trust that the people of the United States will
learn a salutary lesson from this trial, and that the disgraceful
scenes that have been enacted in various parts of the country in
condemning, even criminals, to death without due process of law,
will be at an end. Hoping I may hear from you, and wishing you
every personal blessing, I remain,

J. H. McCONLOGUE," President Iowa State Bar Association.

My gratitude to you for the plea which you made at the Czolgosz
trial is so real and sincere that I am not content with just feeling
it. I teach a class of boys in a grammar school in Brooklyn, the
class which promotes to the high school, and I wanted my boys to
see that the saving of the assassin for legal trial was a triumph
for law and order for which every American ought to be devotedly
thankful. So when I read your plea and found in it just what I
wanted to say, stated in a manner so clear, so simple, so direct,
that I knew my youngest pupil could grasp it, I carried it off with
delight to read during the civil government period. When I read,
as impressively as I knew how, the paragraphs which laid such
stress on duty — that splendid word which the children of this day
seldom hear — and those which called attention to the great danger
of the spread of the belief that lynch law should take the place
of the law of a court of justice, many faces showed intelligent ap-

LEON F. CZOLGOSZ. 215

as a lawyer and as a judge to carry out the absolute mandates
of our law and to stand here before you and present the
formal rights of this defendant. He says to you that there
is no question, that it has been proved beyond any perad-
venture that this man was the instrument that caused the
death of our beloved President, and he simply leaves you
with the statement that if this man was mentally responsible,
then he is fully and absolutely guilty of the crime of murder
in the first degree. Gentlemen, we have been expeditious
in the presentation of this case to you, still we have en-
deavored to present it to you with no indecent haste. We
have endeavored to present to you all the essentials, all the
material elements that go to make up the crime of murder
in the first degree. We have shown you that our beloved
President was shot on the 6th day of September; we have
shown you the history of that wound and that he came to
his death as the result of it. We have shown you that this
defendant stood there in the Temple of Music on that Fri-
day afternoon and with this weapon, we have exhibited
here, fired the fatal bullet. We have shown you, by witnesses,
the admissions of this man concerning his premeditation and
deliberation, for how long a period he had thought about
this awful crime, where he was born and educated and where
he got the seeds of this terrible deed in his heart. We have
shown you that he had gone to these anarchistic or social-
istic meetings and that there had been embedded in his dis-
eased heart the seeds of this awful crime which resulted in
that terrible shot on Friday afternoon. He retailed and de-
tailed to the different people the history of himself and of

preciation and approval. It took me twenty-two minutes to read
it and they all listened attentively to the end. When I closed,
there was no applause, scarcely a change of position, but each boy
looked up to receive the order for the next period with a face which
indicated that he meant to do his duty and conform to the law of
the school room. Could I have had a more gratifying commentary?
Thanking you for the help that your words have been to me and
to my boys, I am, Very sincerely yours,

EFFIE L. SMITH, Brooklyn, N. Y.

216 XIV. AMERICAN STATE TRIALS.

his cogitations, how he was led up to do this act, and the
counsel says to you gentlemen that if — IF — the man was
sane, then he is responsible. He says to you that this man
must be presumed to be innocent, that that is a presumption
of our law. But it is also a presumption of our law that
every man is sane until proven insane. In other words, the
prosecution has the right to come in here and rely on the
presumption that every man who is charged with crime is
sane and mentally and morally responsible for his acts unless
he himself introduces evidence showing the contrary. There-
fore, gentlemen, the question seems simple to me. "What
evidence is there in this case that this man is not sane?
Under the presumption of the law that he is sane and under
the admissions that have been made here that he is the agent
that caused the death, with all the elements that go to make
up the crime absolutely proven, how brief ought to be your
meditation, how brief ought to be your consultation about
the responsibility and criminality of this individual?

Gentlemen of the jury, this is not a case for oratorical
flights or for vivid imagination. Both the counsel for the
defense and the counsel for the prosecution have endeavored
to eliminate everything of a sensational character from every-
thing concerning this case, and I intend in this address to
you to continue that line of procedure. I do not intend
to make any attempt at oratorical nights; I do not intend to
work upon my imagination or try to sway you under my ex-
pressions here of the enormity of this offense. It is unneces-
sary. You, as well as I, and as well as every citizen of the
civilized world, understand the enormous responsibility that
is now about to devolve upon you. The Counsel wisely and
well said to you that no man should be put out of existence
by lynch law. The counsel well said to you that the people
of Buffalo are to be commended for the orderly and law-
abiding spirit and treatment that they have given this case.
But at the same time, gentlemen, the law must be vindicated.
Enough has been said, enough has been shown, enough has
been demonstrated to forcibly convince me — and I know it

LEON F. CZOLGOSZ. 217

has convinced you — that a terrible thing has happened and
it has happened because there is a certain class of people in
this country who unless they feel the strong arm of justice,
the strong arm of the law, is so irresistible as to force down
everything that is against law and order, are going to bring
about something terrible to our beloved country. Gentlemen,
it is an awful, an awe-inspiring and a great truth that has
been taught in this case. When I think, gentlemen, of that
grand man who stood but a few days ago in the Temple of
Music, the man who had come from the lowly walks of life,
who had made his own way by his own unaided strength and
courage, as a lawyer, congressman, governor and then Presi-
dent, and, more than all else, a loving husband, the man who
cherished his sick wife through all the terrible weeks of her
illness, notwithstanding the great responsibilities upon him
as President of our country, a man who was so great that on
his dying bed the last words that he said were "It is God's
way, not ours; His will be done, good-bye, good-bye," — that
man who was still so great and yet who could stand and take
the hand of this man, his assassin, even the worst man that
you could imagine, who offered to take into his hand that
creature and shake him by the- hand upon the same floor,
upon the same level, without taking unto himself any of the
things that he could and perhaps ought to have taken by
reason of his great achievements, — think of it, gentlemen !
think of the great spectacle, the great lesson that it has taught,
the great things that our country produces ; a man so great,
can stoop so low ; a man so great that he can forgive his own
assassin ; so great that he does not hold against him one word,
one thought of ill-will ; — the noblest man, I believe, that God
ever created upon the soil of the United States was taken
from our midst — and yet withal, with all that terrible calam-
ity, and, as a man said to me who stood right beside our
beloved President when he was shot, he said to me only two
or three days ago: "I have traveled all over our broad land
since that awful calamity, I have seen thousands and thou-
sands of people collect along the railroad even to get a glimpse

218 XTV. AMERICAN STATE TRIALS.

at the train; I have seen people stand for hours in the rain
to look upon the outside of his casket; I have seen people
mourn and shed tears for hour after hour who never saw that
great man," and I am convinced, if I never was before, that
there is such a thing as a national heart and that that great
national heart has been weeping as it never wept before, that
great heart is broken and it will take God's own time and
God's own way to heal it, such a great calamity has been
brought about. Brought by what ? By this instrument of an
awful class of people that have come to our shores, a class of
people that must be taught, that should be taught and shall be
taught that it is entirely foreign to our laws, to our institu-
tions and to the laws and institutions that evolved such a man
as William McKinley, that they have no place upon our shores,
that if they cannot conform to our laws and our institutions,
then they must go hence and keep forever from us ; that they
will not be permitted to come here, to stay here to educate
themselves into the notion that they can take the life of any
individual irrespective of consequences, and come into a court
for protection. Think, gentlemen; think of the grand spec-
tacle that is illustrated here! Here is a man who professes
that he does not want a lawyer, that he does not believe in
law, that he does not believe in God, that he does not believe
in the marriage relation, that he believes in the destruction of
life by individuals, and yet, notwithstanding those beliefs,
those theories, those ideas, our laws and our institutions insist
that he should be represented by two of the ablest and most
respected jurists in our city, that we should go through all
the legal formalities just the same as if he were the most re-
spected and highly-thought-of man heretofore, that all the
laws and forms of law must be complied with, and even
though he comes into court and tells you prior to trial that
he is guilty of the crime charged, yet notwithstanding, gentle-
men, under our constitution you must sit here and listen to
the formal proof on the part of the People, so that our law
must be vindicated, our institutions must be lived up to, the
greatest thought of our people must be demonstrated to be

LEON F. CZOLGOSZ. 219

correct notwithstanding the fact that this man himself says he
does not want it.

Gentlemen, I have said all that I care to say; I have said
perhaps more than I ought to say. It is not necessary for me
or any one else to say anything to you. You know your duty.
You have sworn to give this man a fair trial upon the evi-
dence. And what is the evidence? The evidence has been
adduced on the part of the People, as I claim, fully and abso-
lutely demonstrating every element of the crime charged, and
that is all there is of this case.

Gentlemen, this has been an orderly procedure, without
indecent haste, but still it has been with the idea, with the
irresistible impulse to insist and to carry out the strict law
applicable to this terrible crime. The duty of the counsel on
both sides is now ended; the Court will charge you briefly
and then it is your duty to take up the case. I have the
greatest confidence in each one of you and I have no doubt
that the same thought, the same idea, the same object is in all
your minds, that our beloved country, even though we have
lost one of our greatest men, shall still retain the respect of
the whole world and everybody shall be taught, by your treat-
ment of the case, that no man, no matter who he is or where
he hails from, can come here and commit such a dastardly
act, not only against such an individual but against our laws
and institutions, and not receive the full penalty of the law.

THE CHARGE TO THE JURY.

Judge White. Gentlemen of the Jury : — The defendant in
this case is charged by the People of the State of New York
with the crime of murder in the first degree. The law requires
that he shall in the first place be brought into court and al-
lowed an opportunity to plead to the charge. In this case the
defendant has so appeared, and he has acknowledged his guilt.
Such an acknowledgment, such a plea, under such circum-
stances, is not conclusive upon the Jury or the Court, and the
law requires that notwithstanding such a plea, a formal and
orderly and a lawful trial shall be accorded to the defendant.

220 XIV. AMERICAN STATE TRIALS.

The question of the guilt or innocence of this defendant, Gen-
tlemen of the Jury, is, at this moment, an original one with
you. It will be submitted to you for your determination as to
whether or not the defendant is guilty; and the presumption
is, and it must be observed by you, that up to this time, and
until you shall otherwise decide, that he is an innocent man.
The law guarantees, as I have said, that he shall be fairly
tried, and that he shall be tried by twelve men who are impar-
tial, who are intelligent, who are capable of sifting the testi-
mony and the evidence as it is given upon the trial, and deter-
mine from such an examination as that where the truth of the
matter lies. While it is conceded by the defendant, and by
his counsel, that this defendant fired the shot that caused the
death of William McKinley, it does not follow, Gentlemen of
the Jury, that he is guilty of, or that he should be found by
you guilty of, the crime of murder, or of any crime. The
question as to whether he is or is not guilty is an original
one up to this time with you.

It is incumbent upon the People in order to satisfy you
that the defendant is guilty of the crime charged against him
to produce such evidence as convinces your minds beyond a
reasonable doubt that he is guilty. If the People fail to do
that, if in this case they have failed to do it, notwithstanding
any impression that you may have received, any opinion
which you individually may have formed concerning the case,
if on a careful and full comparison and examination of all the
evidence and all the circumstances in the case there exists in
your minds a reasonable doubt of the man's guilt and respon-
sibility under the law, it is your duty to acquit him.

In order to satisfy you, gentlemen, that the defendant is
guilty, the People have produced a line of testimony tending
to show that on the day of the shooting, to-wit, the sixth day
of September, 1901, that this defendant did shoot and kill
the president of the United States. They have given evidence
tending to show that the defendant premeditated and delib-
erated upon the commission of this alleged crime before he
committed it.

LEON F. CZOLGOSZ. 221

If you are satisfied, Gentlemen of the Jury, from the evi-
dence in those respects that there was a predetermined design
on the part of this defendant to effect the death of William
McKinley, and in pursuance of that design these shots were
fired and his life was sacrificed, he is guilty of murder in the
first degree. Unless you are satisfied of that fact, it is your
duty, as I have already said to you, to acquit the defendant.

Something has been said, and very properly, too, concern-
ing the person who was killed — The President of the United
States. The President of the United States stood on the oc-
casion of this shooting, as counsel upon both sides of this case
have told you, as the representative of the majesty and dig-
nity of the Nation, and the attack upon him for which the
defendant was arrested, if he was responsible for the act, is in-
deed a high crime.

It was an assault upon the dignity and the majesty of the
law. But you, Gentlemen of the Jury, should not be permit-
ted, nor should thoughts of that kind be permitted under any
circumstances to sway you from the line of your duty as you
may see it. In other words, the oath which you took when
you entered the panel here to try this man was that you would
give a true verdict according to the evidence in this case.
What that evidence proves, Gentlemen of the Jury, is for you
to say. You are not bound to find criminal responsibility
from any or all of the evidence which has been given upon
this case. In other words, it is for you to say whether it is
true — what the fact is. In the language of the books, you are
the sole judges of all the questions of fact involved in the case.
The fact, Gentlemen of the Jury, that a verdict of guilty
might necessitate the death of the defendant should not be
permitted to sway you from the discharge of your duty as
you see it. I have said that you are bound to find the de-
fendant guilty and criminally responsible for his act beyond
a reasonable doubt before you can convict.

Now, it may be when you come to retire and deliberate upon
this case that you may ask yourselves "What is a reasonable
doubt." I think it is sufficient upon that subject to say to

222 XIV. AMERICAN STATE TRIALS.

you that while a great deal has been written and a great deal
has been said in defining what a reasonable doubt is, that
it means so far as your application of the principle here
is concerned, that you are bound to sift, compare and ex-
amine all of the evidence and all of the circumstances which
have been developed upon this trial; and if, when you have
done that, there exists in your mind a doubt as to the criminal
responsibility of this man, you are bound to acquit him. If
you are satisfied after such an examination and such a com-
parison that there is no question about the man's guilt, you
are bound to convict.

Gentlemen of the Jury, there are, in a homicide, which is
the killing of one human being by another, such as the cir-
cumstances of this case has developed, provisions of law that
a Jury may find the defendant guilty, if they believe him
guilty of any crime at all, of any one of four degrees of the
crime. The first is murder in the first degree. The second
is murder in the second degree. The third is manslaughter in
the first degree. The fourth is manslaughter in the second
degree. Your attention will be called further on specifically
to what the three first of these provisions of the law relate.

I want to say this at this time: That up to this time, up
to this point in the progress of his lamentable affair, that so
far as the Court, so far as the jurors in the presence of the
Court, so far as other people in the presence of the Court is
concerned, there has been that decorum and that respect
which, it seems to me, ought to furnish an object lesson to the
people of our country as perhaps it will to the people of other
countries. There has been up to this time no attempt to un-
fairly influence you or to unfairly secure a verdict one way or
the other at your hands either by the defense or by the
People. Counsel have discussed the facts and circumstances
of this occurrence from their respective points of view as it
was their duty to do, and you have had the privilege of listen-
ing to counsel experienced in the law concerning the rights of
the defendant, concerning the enormity of the crime and all
that, if he is criminally responsible at all. The fact that the

LEON F. CZOLGOSZ. 223

man who was killed was the President of the United States, as
I have already said to you, in and of itself is not of much sig-
nificance. The crime is against the majesty and the dignity of
the law, and I believe, Gentlemen of the Jury, that we can
pay no higher tribute to the man who is dead than to observe
that exalted opinion and reverence for the law which he
would ask if he were here. As it seems to me, it has been
well said that a disposition to incite others to the commission
of crime, is certainly as reprehensible, except possibly in de-
gree, in the minds of some of us as the alleged crime which
we are trying here today. Incitement to unlawful violence, to
lynching and to commit offenses against the law evidences at
any rate anarchists in embryo. The man who is ready to go
out on the street today and commit a crime because some
other man has committed a crime is as guilty in his heart as
the man who has already committed the act ; and it is for that
reason if I can do anything in this case to impress upon the
community, to impress upon the people of this State, the
necessity for the observance of the law and its due and or-
derly administration, I will accomplish certainly a good pur-
pose.

Now, Gentlemen of the Jury, to be more specific, let me say
to you this should be your guide in the conduct and consider-
ation of this case when it is placed in your hands. If you
will listen carefully, I think your duties will be plain; and,
in this connection, it is but fair to say that so far as the
legal aspects of this case are concerned, it is your duty and
your oath compels you to observe the principles by which you
are to be guided as laid down to you by the Court. So let me
say in closing that if on the sixth day of September, 1901,
the defendant did wrongfully without justifiable cause or ex-
cuse assault, shoot and wound William McKinley at the place,
in the manner and by the means alleged in the indictment
upon which he is being tried, and such assault, shooting and
wounding were committed from a deliberate and premeditated
design to effect the death of the said William McKinley, or of
another, and if the said William McKinley thereafter died

224 XIV. AMERICAN STATE TRIALS.

from the effects of such, assault, shooting and wounding, and
such assault, shooting and wounding were the sole and proxi-
mate cause of his death, and if at the time of such assault,
shooting and wounding, the defendant was not laboring under
such a defect of reason as not to know the nature and quality
of the act he was doing or that it was wrong, he is guilty of
murder in the first degree. If you in your deliberations find
that the defendant is guilty of murder in the first degree as
charged in the indictment, you will render your verdict in
that form. When you are asked by the Clerk as to how you
find, your verdict will be, if you find him guilty of murder
in the first degree, "Guilty of murder in the first degree as
charged in the indictment. ' '

If, however, you gentlemen are not saisfied that this de-
fendant is guilty of murder in the first degree from all the
evidence and facts and circumstances in the case, then you
will proceed to determine whether he is guilty of murder in
the second degree. In that regard it is sufficient for me to
say to you that if on the sixth day of September, 1901, the
defendant did wrongfully, without justifiable cause or excuse,
assault, shoot and wound William McKinley at the place, in
the manner and by the means alleged in the indictment upon
which he is being tried, and such assault, shooting and wound-
ing were committed with a design to effect the death of said
William McKinley, or of another, but without premeditation
and deliberation, and if the said William McKinley died
thereafter from the effects of such assault, shooting and
wounding, and such assault, shooting and wounding were the
sole and proximate cause of his death, and if at the time of
such assault, shooting and wounding the defendant was not
laboring under such a defect of reason as not to know the
nature and quality of the act he was doing or that it was
wrong, he is guilty of murder in the second degree.

The second proposition, as I have given it to you, elim-
inates premeditation and deliberation.

If you should not find him guilty of murder in the first de-
gree, therefore, and you find under the evidence in the case

LEON F. CZOLGOSZ. 225

that he is guilty in the manner and to the extent that I have
already called your attention to, then the form of your ver-
dict will be, when asked by the Clerk how you find, " Guilty
of murder in the second degree. ' '

If, however, you find there is a reasonable doubt in your
minds as to his guilt upon both of these propositions, you will
pass to the consideration of the question whether he is guilty
of manslaughter in the first degree. In that regard, if on
September sixth, 1901, the defendant assaulted, shot and
wounded William McKinley at the place, in the manner and
by the means as alleged in the indictment, with a dangerous
weapon — and in this case the evidence is that the weapon
used was a revolver loaded with powder and balls — without
justification or excuse and without a design to effect the death
of said William McKinley, or of another, and the said William
McKinley thereafter died solely in consequence of the effects
of such assault, shooting and wounding by means of a dan-
gerous weapon, and the defendant was not at the time of such
assault, shooting and wounding laboring under such a defect
of reason as not to know the nature and quality of the act he
was doing or that it was wrong, then, Gentlemen of the Jury,
he is guilty of manslaughter in the first degree.

I do not think the evidence in this case calls upon me to say
anything concerning the crime of manslaughter in the second
degree.

You see the test of responsibility is made by law and is
whether or not the defendant was laboring under such a de-
fect of reason as not to know the nature or quality of the act
that he was doing or that it was wrong. In other words, if
he was laboring under such a defect of reason as not to know
the nature and the quality of the act that he was doing or
that it was wrong, it is your duty, Gentlemen of the Jury,
to acquit him in this case. That is the test so far as the plea
or claim of irresponsibility is concerned. If he premeditated
and deliberated upon the commission of this shooting, and if it
was done with a design to effect the death of William MeKin-
lay, and if at that time he was not laboring under such a de-

226 XIV. AMERICAN STATE TRIALS.

feet of reason as not to know the nature and quality of the
act that he was doing or that it was wrong, he is responsible.
That is the test so far as responsibility is concerned under the
laws of this State.

Gentlemen of the Jury, I commend the patience and the
care which I have observed on your part as the evidence was
being given in this case, to its smallest detail. You have been
patient, as I say, and apparently you have been attentive to
the case as presented by the People and the time has now
come when it is to be left in your hands for a final deter-
mination.

It is very desirable, Gentlemen of the Jury, that this pro-
ceeding, as it has been characterized from the beginning, shall
continue to the end; that there shall be no unseemly dem-
onstrations ; that there shall be no conduct which would bring
the blush of shame to the cheeks of any one, either on your
part or on the part of the people who listen to the proceedi
ings in this case ; and in that behalf, Gentlemen of the Jury,
I ask that when you have determined this case that your con-
duct shall have been such as to elicit the approval, not only
of your fellow citizens in this community, but the people of
all communities who have kept watch upon the progress of
this trial, that your conduct may be evidence of a genuine, a
tender and a reverent solicitude for the dignity and the ma-
jesty of the law.

Mr. Penney. I ask your Honor to charge the Jury that the law
presumes every individual sane.

The Coubt. The law in this case presumes that the defendant
was sane.

Mr. Penney. I ask your Honor to charge the Jury that the bur-
den of overthrowing the presumption of sanity and of showing in-
sanity is upon the person who alleges it.

The Coubt. The burden of showing insanity is upon the person
who alleges it. Is that all?

Mr. Titus. You do not want that charged in that way?

Mr. Penney. I concede that that last part be stricken out. The
counsel objects to it.

The Coukt. The burden in the first place, Gentlemen of the Jury,
upon that proposition is with the defendant to give some evidence
tending to show insanity on his part, or irresponsibility; but in
that connection, when evidence of that kind is given, if it is given

LEON F. CZOLGOSZ. 227

at all, it is incumbent upon the People to rebut or meet it with,
other evidence and remove all doubt in your minds — all reasonable
doubt in your minds upon the subject.

Mr. Titus. I did not intend to ask your Honor to charge any-
thing before the counsel got up to request your Honor to charge,
but I now ask your Honor to charge that if the Jury are satisfied
from all the evidence in the case that at the time of the committing
of this assault he was laboring under such a defect of reason as
not to know the quality of the act he was doing or not to know the
act was wrong, that then he is not responsible and they must
acquit him.

The Court. I so charge. I intended to make it very plain to the
Jury in the first place. Is that all, Judge Titus?

Mr. Titus. That is all, sir.

THE VERDICT AND SENTENCE.

The Court. You gentlemen may now retire with the officers.

The Jury retired at 3:50 P. M. and returned into court at 4:25
P. M.

The Clerk. Gentlemen of the Jury, have you agreed upon a ver-
dict?

The Foreman. We have.

The Clerk. How do you find?

The Foreman. Guilty of murder in the first degree as charged in
the indictment.

The Clerk. Gentlemen, listen to your verdict as the Court has
recorded it. You say you find the defendant guilty of murder in the
first degree as charged in the indictment. So say you all?

The Jury. We do.

The Court. That ends your service, Gentlemen of the Jury, in
connection with this case. You are excused.

September 26.

Mr. Penney. I move sentence in the case of The People against
Leon F. Czolgosz, your Honor. Stand up, Czolgosz.

The Crier. Put your right hand on the Book.

The Clerk. You do solemnly swear that you will true answers
make to such questions as shall be put to you touching your name,
your place of birth and occupation and such other questions as shall
be asked you, so help you God?

Mr. Penney. Leon, how old are you? 28. Where were you born?
Detroit. Where did you live last? Buffalo. Do you know the street
and number? Broadway. At Nowak's? Yes, sir. Have you any
trade or are you a laborer? Laborer. Are you married? Single.
What schools have you attended? Small — common school. Been to
the church school, too? Yes. Catholic church? Yes. What church
were you educated in? Did you use to go to the Catholic church?
I did. Are your father and mother alive? No, sir. Which is dead?
My mother is dead? Your father is living? Yes, sir. Are you
temperate? Do you know what that means? No, sir. Do you

228 XIV. AMERICAN STATE TRIALS.

drink intoxicating liquors much? No sir, don't drink too much.
Have you been in the habit of getting drunk? You are not, are you?

The Court. Pass to something else, Mr. Penney.

Have you been convicted of any crime before this? No sir.

The Clerk. Have you any legal cause to show why sentence of
the Court should not now be pronounced against you?

The Prisoner. Can't hear that.

The Court. People in the room should remain absolutely quiet
and those who are unwilling to do that until the proceeding here is
terminated should retire from the room at this time.

The Clerk. Have you any legal cause to show why sentence of
the Court should not now be pronounced against you?

The Prisoner. I would rather have this gentleman speak, over
here (Mr. Penney).

Mr. Penney. The Clerk asks you if you have any legal cause to
show why sentence should not now be pronounced against you? Do
you understand?

The Prisoner. No sir.

Mr. Penney. He wants to know if you have any reason to tell the
Court why you should not now be sentenced — say anything to the
Judge. Have you anything to say to the Judge before sentence?
Say yes or no, if you have.

The Prisoner. Yes.

The Court. In that behalf, Czolgosz, what you have a right to
say relates explicitly to the subject in hand here at this time, and
the legal causes which the law provides that you may claim in ex-
empting you from having judgment pronounced against you at this
time are defined by statute. The first is, that you may claim that
you were insane; the next is, that you have good cause to offer
either in arrest of the judgment about to be pronounced against you
or for a new trial. Those are the grounds specified by statute upon
which you have the right to speak at this time, and you are at per-
fect liberty to do so freely.

The Prisoner. I have nothing to say about that.

The Court. Have you anything to say in behalf of the prisoner,
Judge Titus?

Mr. Titus. I have nothing to say within the definition your Honor
has read, as to what we can say, but it seemed to me that in order
that innocent people should not suffer by this defendant's crime,
that the Court should permit him to exculpate, at least his father
and brothers and sisters.

The Court. Certainly, if that is the object of any statement that
he will make.

Mr. Titus. That is what he tells me.

The Court. Proceed, Czolgosz.

The Prisoner. I would like to say this much; that the crime was
committed by no one else but me; no one told me to do it and I
never told anybody to do it.

Mr. Titus. Your father had nothing to do with it?

The Prisoner. No sir; not only my father, but there hasn't any-

LEON F. CZOLGOSZ. 229

body else had nothing to do with this. I never told anything to no-
body; I never told anything of that kind. I never thought of that
until a couple of days before I committed the crime.

The Court. Anything further, Czolgosz?

The Prisoner. No sir.

The Court. Czolgosz, in taking the life of our beloved President
you committed a crime which shocked and outraged the moral sense
of the civilized world. You have confessed your guilt, and, after
learning all that can at this time be learned of the facts and cir-
cumstances of the case, twelve good men have pronounced your
confession true and have found you guilty of murder in the first
degre. You declare, according to the testimony of credible wit-
nesses, that no other person aided or abetted you in the commission
of this terrible act. God grant it may be so. The penalty for the
crime of which you stand convicted is fixed by statute, and it now
becomes my duty to pronounce its judgment against you. The sen-
tence of the court is that in the week beginning October 28, 1901,
at the place, in the manner and by the means prescribed by law,
you suffer the punishment of death.

When Czolgosz returned to his cell after his conviction he ate a
hearty supper and soon thereafter went to bed and slept continu-
ously until midnight, when the guard was changed, when he awoke
for a few minutes, and then slept again until 6 A. M., when he arose
and took a short walk in the cell corridor, after which he made a
careful toilet, and at 7:30 partook of a hearty breakfast. He talked
freely as usual on ordinary topics, but maintained his usual silence
concerning his crime and would not talk of the trial.

On September 26, he was removed from the Buffalo Jail to the
State Prison at Auburn, N. Y., where he was confined in a death
cell until his execution.

Here he was examined by Dr. Gerin, the Prison physician, and
again by Dr. MacDonald, who found nothing to alter the previous
decision of all the experts that had examined him that he was sane.

THE EXECUTION.

Czolgosz was executed by electricity on the morning of Oc-
tober 29, 1901. The official witnesses, consisting of the Super-
intendent of State Prisons, and other prominent New York
State officials, several physicians, three representatives of the
respective press associations, Dr. Spitzka and others and the
official physicians — Dr. John Gerin, Prison Physician, and
Dr. MacDonald — having been assembled in the execution room
and having received the usual admonition from the "Warden
as to maintenance of order during the execution, the prisoner
was conducted to the room a few minutes after 7 A. M. Every

230 XIV. AMERICAN STATE TRIALS.

precaution was taken by the Warden, who had immediate
charge of the execution, to minimize the opportunity for no-
toriety or sensationalism on the part of the prisoner as well
as to insure that his taking off should be effected in an orderly
and dignified manner.

As Czolgosz entered the room he appeared calm and self-
possessed, his head was erect and his face bore an expression
of defiant determination. The guards, one on either side,
quietly and quickly guided him to the fatal chair, the binding
straps were rapidly adjusted to his arms, legs and body, and
the head and leg electrodes were quickly placed in situ and
connected with the wire which was to transmit the lethal cur-
rent through his body. These preliminaries occupied about
one minute. Czolgosz offered no resistance whatever, but dur-
ing the preparations addressed himself to the witnesses in a
clear, distinct voice in the following language: "I killed the
President because he was the enemy of the good people — the
good working people. I am not sorry for my crime. ' ' At this
moment, everything being in readiness, the Warden signaled
the official electrician in charge of the switch, who imme-
diately turned the lever which closed the circuit and shot the
deadly current through the criminal's body, which was in-
stantly thrown into a state of tonic spasm involving appar-
ently every fibre of the entire muscular system. At the same
time, consciousness, sensation and motion were apparently
absolutely abolished.

■ Two electrical contacts were made, occupying in all one
minute and five seconds. In the first contact the electro-
motive pressure was maintained at 1800 volts for seven sec-
onds, then reduced to 300 volts for twenty-three seconds, in-
creased to 1800 volts for four seconds and again reduced to
300 volts for twenty-six seconds — one minute in all — when the
contact was broken. The second contact, which was made
as a precautionary measure, but which was probably un-
necessary, was maintained at 1800 volts for five seconds. That
conscious life was absolutely destroyed the instant the first
contact was made, was conceded by all of the medical wit-

LEON F. CZOLGOSZ. 231

nesses present; also that organic life was abolished within
a few seconds thereafter.

Czolgosz was pronounced dead by the attending physicians
and several of the other physicians present, after personal ex-
amination, in four minutes from the time he entered the
room; one minute of this period was occupied in the prelim-
inary preparations, one minute and five seconds in the elec-
trical contacts, and the remainder of the time in examinations
by the physicians to determine the fact of death.

The autopsy was made by Dr. Edward A. Spitzka under the
direction of the official physicians — Drs. Gerin and MacDonald
of the College of Physicians and Surgeons, New York City.
The examination occupied about four and a half hours and
embraced a most careful, gross examination of all the viscera,
attention being especially directed to the brain and its me-
ninges. The autopsy revealed no evidence whatever of dis-
ease or deformity of any of the bodily organs, including the
brain, which was normal in size, shape, weight and appear-
ance and was well developed in all respects, — a conclusion
which was concurred in by all of the physicians present, sev-
eral of whom had witnessed the execution.

THE TRIAL OF THOMAS BIRD AND HANS

HANSEN, FOR PIRACY AND MURDER.

PORTLAND, MAINE, 1790.

THE NARRATIVE.

A strange schooner with a crew of three came into the
harbor of Portland, then a part of the State of Massachu-
setts, in the year 1790. And when it continued to stay there
the inhabitants began to wonder what it meant and to become
suspicious. The three men having in their cups told some
very strange stories and people who had gone on board the
vessel having observed some curious things, it was determined
by the authorities to make an investigation. Finding this out
the men attempted to sail away and were not arrested until
they had made an armed resistance. In the jail one of them,
Jackson, confessed that on the High Seas they had killed
the captain, taken possession of the ship and brought her to
port intending to sell her and divide the proceeds and make
their escape. Indicted for murder and piracy, it was proved
that Bird was the most guilty one and he was found guilty
and very promptly hanged.

This case is noteworthy, as being the first capital convic-
tion in the United States Courts.

THE TRIAL.1

In the United States Circuit Court, Portland,
Massachusetts, (Maine)2, 1790.

June 6.
Hon. John Lowell3, District Judge.*

i Bibliography. "The Knickerbocker or New York Monthly Ma-
gazine vol. XIV. New York: Clark and Edson, Proprietors, 1839.

2 Maine was then a province of Massachusetts.

3 Lowell, John (1743-1802). Born, Newburyport, Mass. Grad.
Harvard, 1760; Admitted to Bar 1762; Member State Legislature,
1776-1778; Removed to Boston 1777; Member Mass. Const. Con.

(232)

THOMAS BIRD AND HANS HANSEN 233

Thomas Bird, Hans Hansen and James Jackson had been
previously indicted for piracy on the high seas and the
murder of William Connor. Bird as principal and the others
as being present aiding and abetting. All of them pleaded
not guilty.

Christopher Gore5, United States Attorney, for the Govern-
ment.

Mr. Syms for the prisoners.

So great was the public excitement and the crowd assembled so
large that the Court adjourned to the Meeting-house of the first
parish, Rev. Thomas Smith, the first minister settled in Falmouth.
A jury was empanelled of which Deacon Chase of Peperell, now
Saco, was foreman.

THE EVIDENCE.

Walter Jordan. Am captain brought no cargo and didn't

of the fishing schooner Betsy. In seem to be looking for one. Her

July of last year I was coming whole crew went ashore every

into the harbor here across Cas- day and idled and did nothing,

co Bay when I observed, there No one could discover after all

being a still breeze, a schooner these what they were here for.

that seemed to be signalling for Robert Jordan. Am a fisher-

a pilot. I approached and hailed man on the Betsy. As to this

her. They answered they were crew didn't know nothin' about

the Rover from Africa, wanted 'em. Only knew when they was

a port, didn't care which and piloting of her in, with the lit-

they accepted my offer to pilot tie Betsy; heard the captain tell

them in, which I did. It was father they come from the coast

Captain Bird here. The wind of Africa. But what they come

went down in two days, most of clear from Africa here for with-

the boats went out again but the out any cargo and were staying

Rover didn't budge. This sur- here so long, without trying to

prised people and they began to get anything to do, was more

talk. It didn't seem to have any then I could tell,

object in coming to Falmouth, it Judge Lowell. Have you

1780; Member of Congress 1782; Commr. on N. Y. and Mass.
Boundary, 1784; Judge Court of Appeals, 1784-1789; LL. D. Harvard,
1792; Member of Harvard Corp. and one of the founders of Am.
Soc. Arts and Sciences. Died at Roxbury, Mass.

* There were no Circuit Judges appointed until 1801. Judge
Lowell was made District Judge, Sept. 26, 1789 and Circuit Judge,
Feb. 20, 1801.

s He was the first United States attorney for Massachusetts and
was appointed Sept. 26, 1789; see 2 Am. St. Tr. 551.

234

XIV. AMERICAN STATE TRIALS.

never said that you did not be-
lieve but that there had been
murder committed on board of
that vessel? And if so please
state to the court what were the
circumstances that caused your
suspicions.

Jordan. Why, William and I
have been aboard of her a good
many times, being she lies off
abreast of our house, and a num-
ber of times we have staid
aboard in the evening and
played cards with the men. They
tell so many different stories
about their voyage and talk so
queer about it, that /I never
could tell what to make of it.
They 'most always had some
punch or wine to drink when
we was playing, and after we'd
played till it got to be consid-
erable well along in the evening
they would sometimes get pretty
merry. Sometimes they said
they had come right from Eng-
land and hadn't been out but
twenty days when they arrived
here. And sometimes they said
they'd been cruising on the coast
of Africa three months to get a
load of niggers but couldn't
catch 'em. And then one of 'em
says 'How many times do you
think old Hodges has looked
over the ship news to try to find
out our latitude and longitude?'
— and then he looked at the oth-
ers and winked and then they
all langhed.

And one time it was a pretty
dark evening they had drinked
up all the liquor there was in
the cabin and Captain Bird told
Hansen to get into the hold and
bring up a bottle of wine. Han-
sen kind of hesitated a little
and looked as if he didn't want
to go and said he didn't believe
but they'd had wine enough —

and he didn't want to go poking
around in the hole in the night.
At that Captain Bird called him
a pretty baby and asked him
what he was afraid of, and
wanted to know if he was afraid
he should see Connor there. And
then Captain Bird ripped out a
terrible oath and swore he'd

have some wine if the d 1

was in the hold. And he went
and got a bottle and give us all
another drink. When he came
back again, Hansen asked him if
he see anything of Connor there.
And Captain Bird swore he'd
throw the bottle of wine at his
head if he didn't shut up.

Another time I was aboard in
the daytime and I see a parcel
of red spots on the cabin floor
and up along the gangway that
looked as if there'd been blood
there; and I asked them what
that was and they said it wasn't
nothin' only where they butch-
ered a whale. And then they all
laughed again and looked at
each other and winked. And
that's pretty much all I know
about the matter may it please
your Honor.

William Dyer. Am a fisher-
man on the Betsy. Was on the
Rover with Jordan and heard
all that they said just as he has
just told it. When I was aboard
the schooner one day noticed a
little round hole in a board in
the after part of the cabin that
looked as if it might have been
made by a bullet from a gun,
and there was a parcel of
smaller holes spattered around
it that looked like shot-holes;
took my pen-knife and dug out
a shot from one of them; when
I asked 'em what they'd been
shooting there, Hansen said that
was where Captain Bird shot a

THOMAS BIRD AND HANS HANSEN 235

porpoise when they was on the
coast of Africa. And then they
looked at each other and
laughed.

Stephen H. Hammond. Am a
government officer. Was ordered
to arrest the people of the
Rover. Took 8 men with me in
a yawl; stood at the helm; two
rowed and the other six stood
with their guns all ready, for
we looked for a fight. As we
approached, we saw the schoon-
er begin to move in a light
breeze down the harbor; they
had evidently discovered us
and what we were after. But
four of our men now took the
oars and rowed so fast that we
soon overhauled her. Heard
Bird call out: "Hist the main
sail, spring for your lives and
we'll beat them." But between
Cape Elizabeth and House Island
we caught up again. I ordered
Bird to heave to, but he kept on.
Shouted that if he didn't I'd
shoot him as he stood at the
helm. Told my men to take
good aim and fire. But Bird
leaped down the companion-way
as did the other two and the
schooner went adrift. We then
jumped on board. On looking
down into the cabin we per-
ceived the three men were
armed; Bird with a musket and
the others with a cutlass and
handspike, and bidding defiance.
I quietly closed the companion-
way and having some men with
me who understood working a
vessel, soon beat up the harbor
again and made fast to one of
the wharves on the Falmouth
side. The wharf was lined with
people who had been watching
the result of the chase and who
now jumped on board in crowds
and thronged the vessel. The

companion-way was again
opened and Bird and his men
were ordered up. Perceiving
there were altogether too many
guns for them on board they
came quietly up and surrendered
themselves. On being taken to
the court-house they were placed
in separate rooms and examined.
John Smith. Was present
when the three men were ques-
tioned in jail. The first said his
name was Thomas Bird and that
he was an Englishman, Hansen
that he was a Swede and Jack-
son that he was born in Newton
in this State. They had little
confidence in each other, thought
the others would betray him and
supposing the one who made the
earliest and fullest confession
would be likely to receive the
lightest punishment, they all
confessed that the captain of the
Rover had been killed on the
voyage; all urged things to do
away with the criminality of the
deed. They agreed the vessel
was owned by one Hodges in
England; that their Captain's
name was Connor; that they
had been trading some time on
the coast of Africa ; that Captain
Connor was rough and arbitrary
and abused his men beyond en-
durance; and that in a moment
of excitement they had sought
revenge by taking his life. They
all agreed, too, as to the manner
in which the deed was done and
as to the time and place. It was
in the night-time, they were in
the cabin, Captain Connor had
been very abusive and overbear-
ing and Bird who was more
highly provoked than he could
bear, caught up a gun which
stood in the cabin, loaded with
ball and shot Connor dead on
the spot. They were then ex-

236 XIV. AMERICAN STATE TRIALS.

ceedingly frightened and tried articles as they had on board,
to dress his wounds and bring sell the vessel the first oppor-
him to. But there were no tunity they should meet with
signs of returning life and they and separate and go to their re-
took him on deck and threw him spective countries,
into the sea. They were afraid James Jackson (who had been
to return to England with the allowed to become State's evi-
vessel and after consultation denee) confirmed the story as
they concluded to come to the relate(j by the last witness.
United States, dispose of such

The Counsel on both sides addressed the Jury and the
Judge charged them. They retired and in a short time re-
turned with a verdict of guilty as to Bird and of not guilty
as to Hansen.

Mr. Syms moved in arrest of judgment, because the lati-
tude and longitute of the sea where the crime was alleged
to have been committed was not stated in the indictment,
which was overruled and the prisoner Bird sentenced to
death by the Court.

Bird's counsel sent a petition for a reprieve or pardon to the
President, then residing in New York, but Mr. Washington refused
to interfere with the sentence of the court and the prisoner was
hanged by Marshal Dearborn on the last Friday of the same month
of June, 1790.

THE TRIAL OF LEVI AND LABAN KENNISTON,

FOR ROBBERY, IPSWICH,

MASSACHUSETTS. 1817.

THE NARRATIVE.

Major Goodridge was a person of previous good character
and respectable standing who professed to have been robbed
of a large sum of money on the night of December 19, 1816, on
the road between Exeter and Newburyport on his way from
New Hampshire into Massachusetts. Among the proofs of the
robbery was a pistol shot through his left hand received,
as he said, before the robbers pulled him from his horse;
he and one of his assailants discharging their pistols at
each other at the same instant. He was then, according to his
account, dragged from his horse and across a fence into a
field, robbed and beaten until he was senseless. On his re-
covery he went back to the toll-house on the bridge where he
appeared to be for a time in a state of delirium. But he had
sufficient self-possession to return to the place of the robbery
with some persons who accompanied him with a lantern where
his watch, papers and other articles were found scattered on
the ground. On the following day he went to Newburyport
and remained there ill at intervals in a state of reason or
simulated frenzy for several weeks. Having regained his
health he set about the discovery of the robbers; and so gen-
eral was the sympathy for him in a very orderly community,
that his plans were aided by the innocent zeal of nearly the
whole country-side. His first charge was against the Kenni-
stons, two poor men who dwelt in the town of Newmarket, New
Hampshire, on the other side of the river. In their cellar
he found a piece of gold which he identified by a mark which
he said he had placed on all his money and a ten-dollar note

(237)

238 XIV. AMERICAN STATE TRIALS.

which he also identified as his own. The Kennistons were
arrested, examined and held for trial. He next charged the
toll-gatherer, one Pearson, as an accomplice; and on his
premises with the aid of a witch-hazel conjuror he also found
some of his gold and papers in which it had been wrapped.
Pearson was arrested, examined before two magistrates and
discharged. He then complained against one Taber, a per-
son who lived in Boston. Finally he followed a man named
Jackman to New York in whose house he swore that he also
discovered some of his marked wrappers. Jackman was
brought into Massachusetts and lodged in jail. He and
Taber and the Kennistons were indicted for the robbery in
the County of Essex.

So cunningly had this man contrived his story and ar-
ranged his proofs that the popular belief was entirely with
him. The witch-hazel part of his evidence probably did not
disincline the populace to believe in him and it was said that
there were few members of the county bar who did not regard
the case of the Kennistons as desperate. Some however be-
lieved Goodridge's story to be false, and these persons sent
for Mr. Webster to undertake the defense of the accused.
The Kennistons had nothing on which to rely but their pre-
vious good character, the negative fact that since the supposed
robbery they had not passed any money or been seen to have
any, and the improbabilities which their advocate could de-
velop in the story of Goodridge. The theory of the defense
was that Goodridge was his own robber and had fired the
pistol shot through his own hand. But when all the evidence
for and against Goodridge's narrative had been drawn out,
and it came to the summing up there remained two obvious
difficulties in the way of that hypothesis. One of them was
that no motive had been shown for so strange an act as a
man's falsely pretending to have been robbed and charging
the robbery upon innocent people ; the other that the theory
of Goodridge being himself the robber, apparently made it
necessary to believe that he had proceeded, in his fraudu-
lent manufacture of proofs, to the extremity of shooting a

LEVI AND LABAN KENNISTON. 239

pistol-bullet through his own hand. These were very for-
midable difficulties; for the law of evidence, as administered
in our criminal jurisprudence, very properly regards the
absence of motive for an act the commission of which de-
pends on circumstantial proof as one of the important things
to be weighed in favor of innocence; and as to the shooting,
it was certainly in a high degree improbable that a man
would maim himself in order to maintain a false statement
that he had been robbed and maimed by someone else. But
in grappling with these difficulties Mr. Webster told the
jury that the range of human motives is almost infinite;
that a desire to avoid payment of his debts if he owed debts,
or a whimsical ambition for distinction, might have been at
the bottom of Goodridge's conduct, and that having once an-
nounced himself to the community as a man who had been
robbed of a large sum and beaten nearly to death, he had to
go on and charge somebody with the act. This was correct
reasoning, but still no motive had been shown for the original
pretense; and if there had not been some decisive circum-
stances developed on the evidence, it is not easy to say how
this case ought to have been decided. His story was that
the pistol of the robber went off at the moment when he
had grasped it with his left hand. Yet according to the testi-
mony of the physicians who attended him there were no
marks of powder on his hand; and the appearance of the
wound led to the conclusion that the muzzle of the piece must
have been three or four feet from his hand, while there were
marks of powder on the the sleeve of his coat as well as the
hand. This state of the evidence justified Mr. Webster's re-
mark that * ' all exhibitions are subject to accidents. Whether
serious or farcical, they do not always proceed as they are
designed to do. ' ' Goodridge, he argued, intended to shoot the
ball through his coat-sleeve and it accidently perforated his
hand also. This discredited his story more than anything
else and convinced the jury that if he found any of his money
on the premises of the Kennistons, he placed it there himself.
The Kennistons were acquitted; Jackman was put on trial

240 XIV- AMERICAN STATE TRIALS.

at the next term of the court and the jury disagreed. At his
second trial, Mr. Webster defended him and he was ac-
quitted. These criminal proceedings were followed by an
action for a malicious prosecution instituted by Pearson
against Goodridge. Mr. Webster was of counsel for the plain-
tiff in this case. The evidence was now still more clear
against Goodridge; a verdict for a large amount was re-
covered against him and the public at last saw the fact
judicially established that he had robbed himself.1

THE TRIAL.2

In the Supreme Judicial Court, Ipswich, Essex County,
Massachusetts, April, 1817.

Hon. Samuel Putnam,3 Judge.

April 23.

An indictment having been found by the Grand Jury of
the County against Levi and Laban Kenniston and Eichard
Taber for, in December 19, 1816, having committed an assault
upon Elijah Putman Goodridge and robbed him of bank bills
of the value of $1080 and of gold coin of the value of $550,
the two Kennistons were arraigned in court and pleaded not
guilty. Taber was not arraigned.

Daniel Davis,4' Solicitor General for the Commonwealth.

i This Narrative is taken from Curtis' Life of Daniel Webster,
Vol. 1.

2 Bibliography. "Report of the evidence at the trial of Levi and
Laban Kenniston before Hon. Samuel Putnam, on an indictment
for the robbery of Major Elijah P. Goodridge, December 19, 1816.
Salem: Printed by T. C. Cushing, 1817."

"The Sham-Robbery, committed by Elijah Putnam Goodridge, on
his own person, in Newbury, near Essex Bridge, December 19, 1816,
with a history of his journey to the place where he robbed himself,
and his trial with Mr. Ebenezer Pearson, whom he maliciously ar-
rested for robbery. Also the trial of Levi and Laban Kenniston.
By Joseph Jackman. (Copyright secured according to law.) Con-
cord, N. H.: Printed for the author. 1819."

s See 2 Am. St. Tr. 108.

4 See 88 Am. St. Tr. 874.

LEVI AND LAB AN KENNISTON. 241

Daniel Webster5 and Stephen L. Knapp for the prisoners.
Mr. Knapp moved that Taber be tried separately.
The Court granted the motion.

April 24.

The following jurors were selected: Oliver Emerson of Methuen,
Foreman, James Ayer of Haverhill, George Bridgeo of Marblehead,
Richard Chute of Rowley, William Carr of Newbury, James Denni-
son of Gloucester, Jonathan Dodge of Beverly, Ernest A. Ervin of
Salem, Peter French of Andover, Daniel Friend of Manchester, Sam-
uel Giddings of Ipswich, and Charles Greenleaf of Newburyport.

The Solicitor General observed to the Court that this cause had
excited much conversation and feeling, especially in that part of
the county in which the Robbery was committed, and he wished the
Jurors might be asked whether any of them had formed an opinion
in the case.

The Court then requested any of the Jurors who had made up
their minds to rise and state it — none rose.

The Solicitor General remarked, that the Jurors from Newbury-
port and Newbury probably must have heard considerable con-
versation on the subject, and moved they might be sworn to make
answer.

They were sworn, and declared they had formed no opinion. The
Jury was then impanelled.

THE SOLICITOR GENERAL'S OPENING.

The Solicitor General, in opening the cause on the part of the
government, explained to the jury the laws of the Commonwealth
against robbery, the nature of its amelioration from the severity
of the law formerly existing against this crime, when it was pun-
ished with death; but whether the community were injured or bene-
fited by the change, it was not proper for him to discuss, nor the
jury to consider.

He then pointed out to them what he thought their duty in trials
of this nature and importance to society, and proceeded to state
the particular facts he expected to prove in this case: That Major
Elijah Putnam Goodridge, of Bangor, in the District of Maine, was
on the evening of the nineteenth of December last, travelling in
Newbury, near Essex Merrimack Bridge, and pursuing his journey
at an easy rate, was assaulted and wounded, and robbed of large
sums of money as had been named in the indictment just read
to them.

He expected to be able to prove, he said, beyond a reasonable
doubt, that the prisoners were engaged in this act of outrage and
violence on the person and property of Major Goodridge — for the

s See 7 Am. St. Tr. 414.

242

XIV. AMERICAN STATE TRIALS.

prisoners were on the afternoon previous to the robbery at New-
buryport, within a short distance of the place where it was per-
petrated; and were seen the same evening under very suspicious
circumstances; and he should further prove that, since that time,
on a thorough search in the dwelling-house of the Kennistons, that
there had been found papers and bills, and gold coin, which Good-
ridge could identify, and had identified to be his, and which had
been taken from him at the time of the robbery.

Other strong and corroborative circumstances — such as their agi-
tation and partial confessions, when charged with the crime, he
should comment on after the jury had heard the evidence he should
produce. He did not think it necessary to proceed further in the
opening, but would now call his witnesses.

THE WITNESSES FOR THE COMMONWEALTH.

Major Qoodridge. Robbery took
place on the nineteenth of De-
cember; I was robbed of $1086
in bills and $669 in gold, my
own property — doubloons, Louis
d'ors, guineas and a piece of
gold bearing an emblem of the
French Republic. I also had
money belonging to others from
$300 to $500. I set out from
Bangor in a single sleigh, trav-
elled with no one and saw no
suspicious persons till I arrived
at Alfred. Stopped there be-
cause I did not like to travel
after dark. Met a man I now
believe to be Reuben Taber who
had an opportunity to see my
baggage. Next day I left Alfred
and met with nothing material
till I reached Exeter. Sleighing
being bad concluded to pursue
my journey on horseback.
Stopped at Smith's tavern in Ex-
eter, put up my horse and left
my pormanteau, valise and
trunk with the bar-keeper. Ap-
plied to Mr. Odlin for a second-
handed saddle. He obtained one
for me. After dinner I re-
quested the young man who kept
the bar to show me into a room,
saying I wished to shift my

clothes. My real object was to
put my pistol in order. I had
just drawn the old charge, and
recharged with powder, and was
scraping a ball which happened
to be a little too large, when the
young man interrupted me; then
thought there would be no fur-
ther use in concealment, and
told him I had money. He told
me he had balls that would suit
my pistol; returned immediately
with a parcel of balls in his
hand, followed by several stran-
gers, and some in the entry
were looking at me; finished
charging my pistol, and went
out into the bar-room for my
portmanteau, leaving the pistol
on the table charged; was de-
tained some time in settling my
bill, and was then called back
to pay for the balls, the young
man saying he had not been
paid for them, and was again
detained in making change. My
horse was soon ready and
brought to the door. When I
mounted him the people were
laughing.

Found my pistol placed with
the muzzle toward my leg —
shifted it and proceeded on my

LEVI AND LABAN KENNISTON.

243

journey; reached Kensington
soon after dark. I missed my
way, going through Salisbury;
paid my toll and crossed
the bridge a little before nine in
the evening; was rising the hill,
about a quarter of a mile from
the bridge, when the attack was
made. A person jumped from
the side of the road — caught the
horse, presented a pistol, and
demanded my money; asked him
to wait till I could get it from
my portmanteau; then, under
pretense of getting my money,
seized my pistol, cocked it and
with my left hand tried to knock
away his; was in the attitude of
firing, when he fired. At the
same time saw two other persons
approaching. Whether I fired
my pistol I cannot tell; lost all
recollection till I found some
persons dragging me into the
field; cried for help; they tried
to choke me, finally ceased to re-
sist. They stripped me, turned
me and left me. Cried for help,
they returned, got me down and
left me senseless. Have no
recollection of what took place
after till I found myself at the
bridge, badly wounded on my
side, great pain in my head from
blows, my left hip sprained, a
shot through my left hand. I
had a glove on. The first man I
recognized at Mr. Pearson's at
the bridge was Mr. Potter. He
had found my pocket-book and
portmanteau and many of my
things. He asked me if they
were mine; told him they were
mine and requested him to keep
them for me. Saw Mr. Way
who offered to assist me. Re-
quested him to go to Danvers
and inform my friends Page and
Fowler of my situation. Next
day saw Mr. John Pearson who

brought with him Dr. Spafford.
Was removed the same day to
his house in Newburyport; was
attended by Dr. Spafford three
or four weks. Heard of Reuben
Taber first from Page, who re-
ferred me to a Mr. M'Kenniston
for a particular description of
him. He told me of Taber's
haunts and thought something
might be got out of him. Went
afterwards to Boston, began to
look after Taber and met him
near Bowden's tavern, selling
combs. Asked him if his name
was Taber, he said yes. Asked
him if he knew the people who
lived east and west of the New-
bury bridge, he said he did; told
him he might possibly point out
the robbers. Said he had formed
an opinion, it would be more
than his life was worth but if I
would give him three hundred
dollars he would tell me all he
knew. My friends, Mr. Jones
and Mr. French, advised me to
disguise myself and get near Ta-
ber in that way. I did; met Ta-
ber near Ann street; he agreed
to give the names of those con-
cerned for four hundred dollars
and trust to my honor for the
payment in case the informa-
tion proved correct. He told me
the prisoners were two of those
concerned and they had some of
the money if they had not spent
it. Went to Danvers and com-
municated these particulars to
Mr. Page and he consented to
assist in the search and appre-
hension of them. Went to Hamp-
ton with Mr. French and
stopped at Langmaid's; sent for
Mr. Pike and sent him to New-
Market to see if the Kennistons
were at home. Mr. Langmaid
went to engage Major Leavitt as
vigilant officer. We went next

244

XIV. AMERICAN STATE TRIALS.

morning with the officers, Major
Coffin, and Mr. Towle, entered
the house and arrested the pris-
oners for robbery. Mr. Upton,
pointing at Laban the youngest
said, "he is the guilty one, keep-
your eye on him." Was con-
vinced they were not the per-
sons who made the attack — they
were small.

Proceeded to search, and
found part of my money; heard
Leavitt say he had found some
counterfeit money; replied, it
was not mine if it was counter-
feit. Afterwards, at Major Cof-
fin's house, Major Leavitt took
out of his pocket a ten dollar
bill, which I knew, by the name
written on the back in my own
hand writing, to be mine: the
name was James Poor, and it
appeared to be partly erased.

Major Leavitt received a paper
from the hand of the justices
sealed and containing a bill.
[Major Leavitt swore to the pa-
per, and Goodridge to the bill.]
This bill I brought from Bangor,
and never saw it afterwards till
I saw it in Major Leavitt's
hands, at Major Coffin's, and was
robbed of that with other bills.
While at Kenniston's we
searched the house thorough-
ly and found nothing but small
parcels of silver. Leavitt went
below to search the cellar; a
pair of pantaloons was hanging
at the head of the bed; went to
the pantaloons, took out a small
pocketbook. opened it and found
one dollar, and some silver and
a doubloon.

We afterwards made search in
every part of the cellar, dug it
where the soil was loose, and re-
moved stones in the wall. Up-
ton called suddenly, "I have
found the hoard!" Leavitt and

other persons then came down,
and Leavitt picked up another
doubloon; one of them was cov-
ered and had my marks; previ-
ous to our finding this money in
the cellar, a number of the
neighbors had collected. We
searched as critically as possible
and found nothing material, ex-
cept in a drawer a tin dish, con-
taining from 20 to 40 dollars.
The prisoners disavowed it.
Found covers of the gold at
Pearson's on the island in the
necessary vault with my figures
upon them. At New York in
possession of Joseph Jackman I
found very much torn some of
the covers of gold and a part of
the receipt of Thomas Curtis,
which was with me when I was
robbed; they were scattered
among the rubbish on the floor
of the room where Jackman
slept. Believe Taber to be the
man who took my horse by the
bridle.

Mr. Webster. At what time
were you at Alfred? I do not
remember; think it was the
17th, the night before I came to
Exeter. Had you any conversa-
tion with the person you sup-
posed to be Taber? I conversed
with him, and the landlord,
some by firelight. Did he, Ta-
ber, describe the individuals ac-
curately? He did; I had the
impression they were larger
men. When did you leave Ban-
gor? About 10 or 12 on Wednes-
day, I think. Did you meet
anything to alarm you till you
reached Alfred? No and not
then. Did not you load and un-
load your pistols every day on
your journey? Yes.

How came you to arm your-
self in this way? Did you ever
hear of any robberies in the dis-

LEVI AND LABAN KENNISTON.

245

trict of Maine Yes, I heard
just before I came away, of a
man's shooting a robber in the
woods, in Augusta, which proved
to be his landlord; and after-
wards being conscience-struck,
went into court and told the af-
fair, and the court dismissed
him, approving his conduct.
Was this, then, Major, your mo-
tive for arming yourself? tell
the jury, Major. It was one mo-
tive. Did you ever hear of any
more robberies in the District of
Maine? Yes, one of a Mr. Cutts,
in Saco woods. These then, Ma-
jor, were your reasons? Yes.

What conversation with the
suspicious person at Alfred? The
landlord's son and myself were
talking about lumber and ship-
building. This person was by,
and appeared acquainted with
the subject. Did you say any-
thing about your property? No.
Did you ever tell them there to
be careful of your portmanteau?
Yes; I told the young man, as
he was putting it into the sleigh,
to be careful of it. How came
you to do so then, as you were
departing? I was afraid that
the pistols might go off. Did you
ever load your pistols in the
presence of any one, till you
reached Exeter? No. Did you
ride any part of your journey in
the night? I did not. How hap-
pened you then to ride on the
night of the 19th? Because I
considered myself out of dan-
ger. What did you do to find
your money? I have stated al-
ready. Did you never apply to
conjurors, magicians, necro-
mancers, witches, witch-hazel
and metallic rods? I did apply

Speak, Major, tell the jury.

I did apply to a Mr. Swinington
of Danvers, and we searched the

island with metallic rods. Did
you really believe, Major, that
these things would enable you to
find your money? I did if prop-
erly prepared. Were there any
visible marks of violence upon
your person? There were upon
my hand, side, &c, some one
jumped upon me. Do you feel
any bruises now? I do not. How
long before you were recruited?
About six weeks. Was you pres-
ent when the covers of the gold
were found at Pearson's? I was.
Was any person present when
your papers were found in Jack-
man's room at New York? Yes
— the police officers. Where were
they found? On the floor of the
room where Jackman slept,
loose, with other rubbish. When
was the search made? On the
12th or 13th of this month. Why
was it not done before? Because
it was not convenient. Have
you returned to Bangor since
this affair? No — I have re-
mained about here. Why have
you let Jackman rest so long?
My friends engaged to write to
New York about him. When
did you first see the ten dollar
bill, found in the drawer of the
Kennistons? I did not see it
till I reached Major Coffin's
house. Of whom did you receive
the gold? It had been laying by
for about a year. How long had
you been collecting the bills? A
short time. Of whom did you
receive this paper money? I
had received three hundred and
seventy dollars, by a draft on a
" Mr. Goodhue. What became of
the proceeds of this draft? I
paid some debts in Bangor. Then
this could not have been a part
of the money you took away,
could it, Major? (The answer
was confused.) I ask you again,

246

XIV. AMERICAN STATE TRIALS.

of whom you received this gold?
Last summer I received a hun-
dred dollar bill, which proved to
be bad; I returned it to the man
of whom I took it, and he gave
me gold. How did you carry
your money? I carried the bills,
all except about one hundred
dollars, in a cambric handker-
chief, attached to my body un-
der my inner waistcoat, next to
my skin, and the gold I carried
in a shot bag in my portman-
teau. Was the whole taken from
you at the first attack? I pre-
sume on the first attack; they
searched my pockets, and took
my pocket book, but I am not
certain whether it was the first
or second time. Did you ever
examine your coat? No. What
was the first thing you recol-
lected after the fire? I have
stated that, the first thing I rec-
ollected, they were dragging me
over the fence, stripping me in
the field and choking me. As
near as you can recollect, when
did you come to possession of
your senses? The first of my
perfect recollection was, when I
was with Potter. Did you recog-
nize Taber, when you saw him
at Boston, to be the same man
you saw at Alfred? I do not
know positively. What method
did you first take to find Taber?
I enquired at taverns, cellars,
&c. Did you never hear that Ta-
ber was in jail? I never did.
Did any one point him out to
you? I knew him by the de-
scription I had of him. What
did Taber tell you? At first he
appeared alarmed, but said, for
300 dollars, he would tell me all
he knew, and appointed a meet-
ing, but failed in his engage-
ment. I entered into a positive
engagement not to trouble Taber,

who, however, never acknowl-
edged any concern in the affair.
Have you suspected any other
persons? Yes, Mr. Pearson, by
information received from Ta-
ber. Did Taber say he knew the
Kennistons, and had seen them
frequently? Yes, he had seen
them frequently.

William Potter. I drove the
stage that night. After I arrived
in Newburyport, heard of the
robbery and went to the island
— saw Major Goodridge there.
He opened his eyes, reached out
his hand, and said he was
among robbers. He requested
me to go and search for some
of his things. I went with Mr.
Jackman and a Mr. Bradshaw.
In the road we picked up his
whip, and two rods further, one
of his pistols; then we found his
portmanteau, valise, money, pa-
pers and bills, to amount of 36
dollars, and a bunch of bills
with a bandage. He asked for
his memorandum, to see what he
had lost; there every thing was
minuted. Dr. Carter wished to
have his hand dressed and sent
after a watcher. The things
were tied up and given to Mr.
Pearson.

Cross-examined. Major Good-
ridge appeared distracted — said
he was among robbers, but at
length consented to have his
hand dressed. Persons could be
seen from the road where the
principal things were found. He
appeared out of his mind, lying
on the floor; attempted to rise
up but could not. I passed a
wagon near the place of robbery
just before I reached High
street; saw three men going by
the fence on the road from New-
buryport.

Major Samuel F. Leavitt. Am

LEVI AND LABAN KENNI8T0N.

247

a deputy sheriff; ascertaining
that the Kennistons were at
home, took Mr. Towle, entered
their house, arrested Levi and
enquired for Zebulon. Levi then
said, "What have you arrested
me for?" I told him; he then
said, "You cannot want him, for
he was in Vermont at the time
of the robbery; it was Laban
who was with me that night."
We struck out the other name
and put in Laban's.

Zebulon came and said we
might search his house if we
wished; we should find nothing
but poverty there. We proceeded
to search the house in the room
where the prisoners then were;
nothing was found but some
small pieces of money — nothing
that Major Goodridge owned.

Proceeded for the bed-room;
searched a chest of drawers; in
a second drawer found a ten dol-
lar bank bill, rolled up as care-
fully as if it was to be put into
a ladies' thimble. Believed it
counterfeit and threw it back
again; went down into the cel-
lar, found nothing. I was then
called up, hearing that those
above had found the doubloon
in the father's pocket book. It
was in Major Coffin's hands.

Levi and Laban said they did
not know of their father's hav-
ing any gold. Goodridge and Up-
ton then went into the cellar to
search, and soon after I heard a
cry, "Secure the prisoners, we
have found more money." Went
down and saw Goodridge hold-
ing the candle over the place,
and Upton hold up a doubloon
to view. Felt under and found
one piece more. The piece I
found was covered, and had Ma-
jor Goodridge's marks upon it.

John Upton. Was called upon

by Mr. Page to assist in the
search and apprehension of the
robbers. Searched the western,
eastern and back part of the
house and bedroom. Laban look-
ing into the bedroom appeared
much agitated. At the head of
the bed was an old pair of pan-
taloons; took out the pocket-
book and found a doubloon
there.

Mr. Webster. Who was down
the cellar with you when the
money was found? I think Ma-
jor Leavitt and Goodridge.

Davis. What was the size of
the cellar? Twenty feet by ten
— about that. Did Goodridge go
near the meat barrel when the
money was found? I did not
see him, he was searching the
other side.

Judge Putnam. Had Good-
ridge been in the cellar before?
Not to my knowledge.

Mr. Webster. How long was
you in the cellar? Perhaps an
hour. What time did you go to
the house as near as you can re-
member? The sun was two hours
high.

Daniel Co fin (recalled).
When the pocket-book with a
doubloon was found it was
shown to the prisoners who were
asked whose it was. They said
their father's.

Mr. Webster. Was there no
door fastened in the Kenniston
house against you? No, there
was no fasten to one of the in-
ner doors. Did not hear any-
thing of the ten dollar bill be-
ing found at the house of the
Kennistons'.

Gardner Towle. I did not as-
sist in the search; asked Levi
why he sweat so much; he said
it started him to see so many
people there.

248

XIV. AMERICAN STATE TRIALS.

■John Pike. I went to Lang-
maid's at the request of Mr. Up-
ton; Goodridge requested me to
go and see if the Kennistons
were at home. AVe went and ar-
rested them; I had the custody
of the prisoners. I heard Upton
cry out, "secure the prisoners —
we have found the hoard." I
then said to the prisoners,
"You had better not stand out/
for how could this money be
here?" Levi said, "father is a
cunning man, perhaps he put it
there," and Laban said, "he
married a rich wife, and per-
haps she brought it." After-
wards, at Newburyport, Levi
said, "do you talk with Taber;
for if he will tell what he knows
I shall be clear."

Samuel R. Caldwell. I saw
the Kennistons the day of the
robbery. Levi called at my fa-
ther's house, with a horse which
was put up. He went away, and
the prisoners returned about
dark, and enquired what time
we shut up, saying, they were
going to take a cruise, and

should want lodging; would be
back by ten o'clock. I saw
them about seven at the gate,
talking with a third person.
Nest morning I saw them
in the stable conversing togeth-
er. About half an hour after
Levi came into the house and
said, "Well — I am glad I was
not there" and one drop of
sweat started from under his
eye. Asked him where he stayed
last night, he said at Mr. Tit-
comb's cellar.

Ephriam Titcomb. Know the
prisoners and saw them the day
of the robbery. Laban Kennis-
ton had no money after the rob-
bery. About seven o'clock they
both went out of my house and
were gone until after ten
o'clock in the evening. Then
they returned and stayed all
night. I was unwilling to let
Laban go until my bill was paid.
Levi said I might take the tur-
key which he brought with him
the day before and produced a
two-dollar bill and settled with
me.

HE. KNAPP'S OPENING FOE THE DEFENSE.

Mr. Enapp. May it please the Court, Gentlemen of the
Jury: The long, minute, and various evidence produced on
this trial, on the side of government, must have been a
great tax on your patience. It must be still further taxed
in your attention to the defense of the prisoners at the bar;
for this defense, with the greatest attention to brevity, must,
necessarily, be somewhat long. "While human nature is con-
stituted as it is, and our civil institutions continue, the
enlightened among our fellow citizens must, at times,
be called to pass between the Commonwealth and those
unfortunate persons who may be accused of crimes. This is
sometimes a painful prerogative, and a laborious and irk-

LEVI AND LABAN KENNISTON. 249

some duty, from which the timid shrink, and which feeble
minds fear to discharge. But a full and faithful performance
of this duty, gentlemen, only requires the exercise of those
virtues so necessary in the common affairs of life — firmness,
independence of mind, patience in research, and candor in
judgment. Firmness is required as an everyday virtue to
support with equanimity the vicissitudes of life, but its
sturdiest efforts are all wanted when we are called to act and
decide, when action and decision will essentially affect the
interests, characters, or liberties of others. This firmness of
mind you this day need. Your station this day requires a
spirit of independence; not that independence which springs
from harshness and insensibility, but that which is formed of
the blended excellencies of enlightened mercy and intrepid
justice, which always exhibits a respectful fearlessness of
those clothed with authority, and a disregard of the frowns
or smiles of enemies or friends. This independence your
country and the prisoners expect from you, gentlemen, in the
discharge of your duty on this trial. If you look entirely to
the law-officer and the court, you become mere creatures of
the government, and woe betide the unfortunate prisoners
at the bar; and if you catch your inspiration and make up
your determinations from the ever changeful dispositions of
the public, the laws may sometimes be trampled upon with
impunity, and sometimes executed with a blind fury, from
an inordinate abhorrence of wickedness, and in the extrava-
gant desire to do good. Calmness precedes just opinons ; and
moderation is always mixed with satisfactory decisions. You
will find a great share of patience necessary to investigate so
perplexing a mass of testimony as has been, and will be
offered you on this trial; but on this patience the prisoners
can safely presume — and they have no doubt that every cir-
cumstance which has a bearing on the case will be properly
examined by you. To this patience, gentlemen, we trust you
will add candor, to meet this serious question with a purity
and elevation above the mists of prejudice, and the influence
of narrow and partial views. At the first recital of a tale of

250 XIV. AMERICAN STATE TRIALS.

robbery like this, every one feels horror and detestation at
such an atrocious deed, and vents a burst of indignation at
the perpetrators of it. The mind in such excitement is
naturally inclined to credulity; and passion is always hasty
in forming an opinion; for to the fevered mind calmness,
doubting and enquiry, seem dullness, if not villany. You
have declared, gentlemen, and we have no reason to doubt
your declaration, that you have not formed an opinion on the
guilt or innocence of the prisoners ; but you will, I believe, as
honest men, feel it a duty to pass a thorough self-examination,
to be certain that no biases, half-formed opinions, wishes, or
partialties, have an influence on your conduct on this trial.
In every action in life, in every hour of his existence, a silent
and constant prayer ascends to heaven from the heart of the
good man, that he may think rightly and act well. The
Solicitor- General has said his was a painful task in this prose-
cution— the Counsel for the prisoners have quite as painful
a duty to perform ; but one from which they will not shrink.
Levi and Laban Kenniston, prisoners at the bar, are in-
dicted for robbing Elijah Putnam Goodridge, on the night
of the nineteenth of December last, in Newbury, near
Essex Merrimack bridge. To this indictment they have
pleaded not guilty, and put themselves on their country for
trial ; which country you are. It is incumbent on the govern-
ment to show you, gentlemen, beyond a reasonable doubt,
that the prisoners perpetrated the crime of which they are
charged. If the testimony on the part of the government
is confused, contradictory, and unsatisfactory, varying in the
particular circumstances which are adduced to show the guilt
of the Kennistons, then you will be directed by the court to
say that they are not guilty; for every contradiction or un-
certainty must weigh in their favor. We shall now, at the
threshold, open to you the nature and extent of our defense ;
if it appears strange and cruel to you in the commencement,
do not be startled, for it is brought forward in the sincere
conviction that it is our duty so to do. It shall be pursued
with candor and fairness, but at the same time will certainly

LEVI AND LAB AN KENNISTON. 25 1

be insisted upon with tenacity and confidence. The first
point then in our defense is — that the robbery is fictitious; —
counterfeited for reasons and motives, which can only be
conjectured by us : for we can only conjecture the motives of
the cheat, the incendiary, the gambler, and the suicide. The
motives of wicked men dwell in the inmost recesses of their
hearts, and can only be fully known by an avowal ; and then
not always comprehended by the honest and elevated. The
circumstances which we shall show to prove the correctness of
this position, the counterfeit robbery, are the following —
That Major Goodridge passed Essex Merrimack bridge about
fifteen or twenty minutes before nine o'clock on the evening
of the 19th of December last past, on horseback, and in about
three quarters of an hour returned on foot to Mr. Pearson's
house at the bridge, without a hat, wounded in the hand,
apparently in a wild and distracted state of mind, raving
against robbers, charging every one he saw with having
robbed him. After the good people of the neighborhood were
collected by the humanity of Pearson, Goodridge insisted on
going to the spot where he said the robbery had taken place ;
but just as he reached the "bloody arena," the Major's
sensibility was so exquisite that he sunk senseless, and was
brought back by three of the witnesses whom we shall pro-
duce; they placed him on the floor with a pillow under his
head, and the by-standers exclaimed that he was dead. At
this time Doctor Carter, who had been sent for by Mr. Pear-
son, examined the Major's pulse and found them strong and
regular, and assured the people collected that he was not
dead nor dying, for his pulse were as good as theirs. This
seeming derangement continued, and he repeatedly refused
to have his hand dressed, still continuing, by turns, faint and
senseless, or wild and delirous, until Mr. Potter, whom he had
previously known, came from Newburyport to see him,
(where Mr. Pearson had sent intelligence of the event)
and with others to assist in detecting the perpetrators of the
outrage if they were to be found. Goodridge then came to
his senses, knew Potter, gave him some account of the robbery,

252 XIY. AMERICAN STATE TRIALS.

requested him to go to the ground on which he stated the
affair took place, particularly mentioning his valuable watch,
pocket-book and other things. Potter and others went as
directed, and on the brow of the hill this side of the bridge
found a whip, and a pistol, both marked with blood. From
his own account the pistol was, when fired, in his right hand,
and must have instantly dropped when he received the blow
^n the head; the whip must have fallen before. How came
these stained with blood? Just over the fence, a few feet
from the road, were found the port-bags, valise, linen, gold,
silver, cents, bullets, one bank bill, and papers, strewed all
Wer the ground, and near the fence his watch and pocket-
book. These things were brought to Goodridge, who ac-
knowledged them as his, and named a memorandum of every
thing he had with him — this paper was found, which he knew,
when it was shown him. Goodridge then consented to have
his hand dressed, which was done by Doctor Carter, and his
body and head searched for the grievous wounds and bruises
of which he so incessantly complained as extermely excruciat-
ing; but the surgeon, after a strict examination, could dis-
cover neither bruise, laceration nor stabs, nor, wonderful as it
may seem, the least discoloration of the skin; and nothing,
save a small scratch on the left arm, which was too inconsider-
abl for surgical attention. Another physician was called to
consult on the case, and by him, we shall show that the Major
requested to be turned in his bed — and while they were
attempting to do it in as gentle a manner as possible, he
screamed as if for pain, calling on them to despatch him that
he might be free from such misery. They thought proper to
desist and did not turn him.

His conversation was then wild and incoherent, while they
were looking at him, but when, by a little finesse on the
physician's part, Goodridge thought he was not observed, he
raised himself in bed with perfect ease, adjusted his hair,
expectorated with strength, and moved about with conveni-
ence, as one well and rational ; but, on the sound of footsteps,
he relapsed into wildness, complaints, and seeming anguish : —

LEVI AND LABAN KENNISTON. 253

from which circumstances, in the mind of the physician, an
irresistible conclusion followed, that the madness was counter-
feited, and the whole business was an imposition. The physi-
cians observed that the Major passed from calmness to frenzy,
from syncope to paroxysm ; —

"While his pulse, as yours, did temperately keep time,
And make as healthful music."

On the 20th of December a third physician examined the
patient, and found no mark of violence about him save the
wound in the hand ; and he is of opinion, that the wound was
made in the direction it would have been if made by himself ;
for the inside of the sleeve of the surtout was burnt with the
powder, which would not have been the case had the hand
been turned to strike away a presented pistol, as stated by
the Major. In that case the outside of the sleeve would have
borne the marks of the injury: — And this same physician
will state that his patient passed from pain to tranquillity,
and from insanity to reason, with unaccountable facility, and
he thinks it only possible, but not probable, that so much
injury could be done to a man with no external marks of
violence about him. From this very witness we expect to
obtain a clue to the indiscriminate zeal and violence with
which Pearson and others were pursued; for the witness
whispered in the Major's ear that his reputation suffered by
the suspicions which were entertained of the reality of the
robbery. The Major then fell to vindicating himself with
cunning and craft, with complaints and oaths, search-warrants
and officers, until he carried confusion and dismay wherever
he went. The arrow went beyond the mark; for the good
people began to think that honesty was never so violent.

From several witnesses it will clearly be made out to you,
that within fifteen or twenty minutes after Goodridge crossed
the bridge on horseback, two teams and the mail stage fol-
lowed, and went within a few feet of the place where the
portmanteau, valise, pocket-book, and other articles lay, and
the scene of the struggle, as he says, when he sprang upon

254 XIY. AMERICAN STATE TRIALS.

one of his robbers, and overpowered him, until the associate
myrmidons came to his resuce. The teamsters were grave
and sober men, who walked slowly behind their wagons as
they ascended the hill, and, as the evening was very still,
could have heard the slightest noise or groan, had they been
made. They heard no noise — all was as still as though the
Major had been at Bangor, and the Kennistons at New-
Market. This we think no trivial circumstance, but sufficient
in the minds of the most credulous, "to hang a doubt on."
Another reason we shall offer for disbelieving the narrative
given by Goodridge himself is, that it contains many improba-
ble particulars, and has not always been uniform and con-
sistent.

The whole story of Taber, we shall convince you, was sheer
fabrication, destitute of the least shadow of probability —
made as a fetch, and will end in nothing. Taber, we shall
prove by documents and witnesses, was, at the time of the
robbery, and long after, at Boston, confined within the limits
of the jail-yard. This will prove what is called in the
language of the law, an Alibi. For Jackman we expect to
prove, that he was at a neighbor's house, spending a social
evening, on the nineteenth of December last.

Our second point in the defense is, that if the robbery
of Goodridge was not feigned, the Kennistons did not commit
it, because they had no means of getting information that a
person was to pass burdened with cash at the time ; and it is
well known, that so few travel on horseback with any con-
siderable quantities of money with them, that it would be
ridiculous to attack travellers promiscuously for the purpose
of plunder. Laban Kenniston, one of the prisoners, had been
at Newburyport for several weeks before this nineteenth day
of December, and Levi Kenniston reached Newburyport from
New-Market about two o'clock the same day, to assist his
brother in returning home. About the same hour of the same
day the Major flourished with his pistols at Exeter, New
Hampshire. The Kennistons were about Newburyport the
evening of the 19th of December, and the next day, without

LEVI AND LABAN KENNISTON. 255

fear or anxiety, having no money beyond a small bill. We
dwell with no small degree of security on the single fact,
that it cannot be shown that these poor fellows expended a
dollar for any articles of necessity or pleasure, from that
day to the fourth of February, when they were arrested. The
minute relation of the facts respecting the money found at
the house of the Kennistons, bears on its face all we want to
show — their innocence ; honesty and credulity were duped by
management and perseverance. This game has been played
before and since. Another circumstance I would ask you to
consider, for it is one that had great weight on my mind, and
I believe it will have on yours — and that is — that the Major
instantly recognized by some mark, letter, or number, every
piece of paper, cloth, bill, etc., which was found in the several
searches, and which, he says, were taken from him on the
night of the robbery. Do you, gentlemen, have ear marks
on every thing you carry about? Would it not be possible
for you to lose a receipt or money cover, or a small rag, with-
out being able to identify it? Can it be believed, that if the
prisoners had been the successful robbers they would have
been so prudent ; or would have hid such little parcels of
money in such places as they were found in? It is a fact
worth your consideration, gentlemen, that not a cent has ever
been discovered in any search, until the Major had first
reconnoitered the ground, and had an opportunity of per-
forming a spell of divination, either the solemn foolery of
the witch hazel rod, or some other sleight of hand. His assis-
tants were deceived. The character of the Kennistons you
will have from the mouths of their neighbors. They are men
ignorant and humble ; not sufficiently wise to plan, or bold and
efficient to execute, an highway robbery. Such an art requires
bold, cautious and intrepid villains. A feeble minded, sneak-
ing rogue may rob a hen roost, or rifle a water-melon bed, but
is never found clapping a pistol to a gentleman's head on
Hounslow heath, or demanding a purse at Bagshot.

Gentlemen, we will not exhaust your patience in the open-
ing, but will leave numerous other circumstances in the

256 XIV. AMERICAN STATE TRIALS.

case for your consideration hereafter, when you come to
form your opinion of the guilt or innocence of the prisoners.
If you take all the circumstances of this affair into view,
and can account for Goodridge's whole conduct from Bangor
to Newbury, and find it a connected, reasonable, and explicit
narrative, our positions and our inferences may be wrong,
and I trust you will see him justified ; but, if you think with
us, that every part of the story bears the marks of confusion,
improbability, fraud, and imposition — and that the honest
have been gulled, and society convulsed, by a fictitious and
wicked tale — let it have the full operation on your indepen-
dent minds:

"Let it work;

For 'tis the sport to have the engineer

Hoist with his own petard."

In this cause we invoke no weeping pity, no forgiving charity ;
we make no idle parade of feelings, no exhibitions of distress,
nor attempt to portray the loss of liberty, dearer to a free-
man than life; — nor even describe the horrors of perpetual
imprisonment, which most of you would dread more than
death. The prisoners only ask of you that justice our wise
and mild laws pledge to the humblest citizen in the com-
munity— and which partakes of the spirit of that justice
which is above all human influence, and which you expect
from your God, when you, as well as the prisoners, are to
be judged. We will now call our witnesses.

THE WITNESSES FOR THE DEFENSE.

Br. Moses Carter. On 19th tion. While apparently sense-
December I was called to less, I felt his pulse, which beat
Mr. Pearson's, to attend a regularly. Potter afterwards
wounded man, reported to have came in, and they recognized
been robbed. Saw Major Good- each other. Soon after, I dressed
ridge walking the room and ut- his hand. He complained of se-
tering strange speeches. He vere bruises on his body and
wished to go to the place of the back of his head; examined him
robbery, and went. He was strictly, and there was no ex-
brought back in a fainting pos- terior mark of injury upon him,
ture; the people in great agita- except a slight scratch on the

LEVI AND LABAN KENNISTON.

257

arm, and tbe wound in his hand.
He was perfectly rational while
I was dressing his hand; he was
then put to bed. When Potter
and he conversed, it was some-
times in whispers. While the
dressings were going on, he told
the story of the robbery. He
said that he fired his pistol, and
nearly knocked down one of the
robbers who attacked him — said
that some one rifled his bosom,
and took his watch from his fob.
A blow would not produce a con-
cussion of the brain, it would
produce a compression. Falling
from an eminence might produce
a concussion. Saw wildness in
his eyes; he repeated the ac-
count of tbe robbery with some
slight variations — such as his
recollection of firing his pistol,
and a person sitting on his face,
and taking his watch, and rifling
his bosom, on the first attack.

Dr. Israel BalcJi. Attended at
Mr. Pearson's on the morning of
the 20th, to consult with Dr.
Carter. Goodridge was lying in
his bed, talking incoherently.
While Dr. Carter was giving me
a history of the case, he was si-
lent, watching closely. When-
ever he caught my eye, he ap-
peared confused, and looked in
a different direction; which led
me to suspect he was not de-
ranged. We examined every
part of his body. There were
no bruises nor wounds either on
the side, breast, or head. I ob-
served to Dr. Carter that the pu-
pil of his eye appeared enlarged;
but. I afterwards accounted for
it by the room being a little
darkened. Goodridge called for
Jerry Balch. I told him I was
Balch. He said I was not Jer-
ry Balch. I afterwards, in
order to satisfy myself

whether this was real or not,
went down stairs, took off my
boots, crept up softly in my
stocking feet, and peeped in at
the door. I heard the bed clothes
move, and saw Goodridge raise
himself up upon his posteriors,
and look cautiously round. He
then raised his right hand and
stroked back his hair; raised it
again, and adjusted his ear-
locks; he expectorated a little,
and very composedly spit in the
fire, twice. A noise was then
heard at the foot of the stairs,
and he covered himself quick
with the bed clothes, and began
to talk wildly again; before this
he pretended he could not move
and it had required three or
four to turn him; never saw
him spit blood.

Dr. Richard S. Spafford. Was
called to attend Major Good-
ridge the morning after the rob-
bery; found him talking strange-
ly, rendering wild answers,
about robbers, to all questions;
felt of his pulse, and found them
rather hard; took from him
some blood; examined his head;
no bruise was apparent. He
complained greatly of his wound,
and I gave him some medicine;
he became rational very soon
after. That afternoon he was
removed to Newburyport. The
next day the same wild appear-
ances returned; the pulse were
hard; and I gave him the same
medicine. He became rational
again quite soon, and never aft-
erwards discovered any appear-
ance of delirium.

There was no mark of vio-
lence in the neck. He com-
plained of great pains in his
neck and side for a number of
days. The ball entered the in-
side of the cuff of the surtout

258

XIV. AMERICAN STATE TRIALS.

for it was burnt by the powder
in that side. The direction of
the ball was perpendicular to
the palm of the hand. Good-
ridge kept in the house after I
told him he might go out with
safety, about a week. He told
me before he went out that he
brushed away the pistol with his
hand. Next day he appeared to
recollect the conversation of the
preceding night. He said to me,
"You are the man who inquired
about Coombs last night." Did
not appear to be in his right
mind.

John Jackman. Went to the
ground that night, the first time
with three lanterns and several
persons. The first thing we
came to was the whip, lying in
the road, and two rods further
we found the pistol, and the gap
in the fence; there was some
blood upon the fence. We found
the pocket-book by the wall, and
papers strewed about a rod
round; we picked up among the
papers, a knife, and a bunch of
bullets were on the ground,
which appeared to have been laid
down with great care, not being
in the least scattered. We found
the hat and valise; there was
some blood upon the bat. We re-
turned to the house with the
things, and Goodridge owned
them. There was some blood
upon the whip, but I saw none
upon the pistol. We made a sec-
ond search, and found a three
dollar bill, and soon after his
watch, close under the fence; we
discovered it by means of the
red seal sticking up in the with-
upon the pistol. We made a sec-
road some small change, and a
small penknife.

Eoenezer Pearson. I tended
toll that night. Major Good-

ridge passed just before nine.
About an hour after, Miss Jack-
man, who was visiting at our
house, went out, and suddenly
returned in alarm; went to the
door, and instantly Goodridge
seized me, and cried out, "You
are the damned robber." My fa-
ther then came out, and re-
quested me to take hold of him,
till some person came to my as-
sistance.

Major Samuel Shaw. On the
nineteenth December I started
from Hampton about six in the
evening, and was about three
hours coming to the bridge.
Keyser and myself then went
into Pearson's, and ate a pie.
We started from there just as
the bell rung nine. On the hill
we heard the stage crossing the
bridge, and about thirty rods
ahead the stage passed us. Key-
ser had got forward of me be-
fore we got to town; and at the
head of State street a horse
came up with us, and followed
me down into the stable. He
had on a saddle and bridle;
drove him away, in order that
the owner might find him that
night. After I had been abed
some time, I was called up and
informed of the robbery, and I
told about the horse.

Eoenezer Pearson. Goodridge
arrested me twice, and searched
my house. The last time he
came, I told him to search hell
and damnation, if he pleased;
and never trouble me again; and
I directed my son to watch him;
for I thought he might put mon-
ey somewhere; money was found
near my house; it was discov-
ered by Mrs. Smith, one of the
family, a few days after the sec-
ond search.

Rev. James Morss. Met with

LEVI AND LAB AN KENNISTON.

259

Major Goodridge in the masonic
lodge; congratulated him on his
discovery by means of Taber.
He told me he had never seen
Taber. I observed, I was much
surprised, as it was generally
understood that Taber had giv-
en him the information. He
afterwards told me in private
that he had seen Taber, and was
under obligations of secrecy to
him; and observed that he had
seen or heard of Taber in An-
dover; was surprised at his pre-

varication, as he might easily
have avoided giving any direct
anwer.

Mrs. Miriam Smith. I had oc-
casion to go into the back-
house with a little child, and on
my return saw a rag in the
snow. I took hold of it by the
corner, and the gold fell out. I
was very much frightened, and
screamed out "Eben, Eben." He
came, and others. We stood
round the place, never touching
it, till deacon Dorr came.

The Counsel for the prisoners then proved the alibi of Taber at
the time of the robbery by producing the record evidence of his
commitment to Boston jail on the 12th of December.

James Harrison. Saw Taber
the 12th of December in the
prison in Boston. The next day
he obtained the liberty of the
yard and lie called every day
after at my shop till about the
middle of January.

Sarah Ann Taber. My father
returned from Berwick the 12th
of December and was imprisoned
that evening and had no time
to return to his own house. Saw
him every day and night till he
was arrested for the robbery
and taken to Newburyport.

David Lawrence. On 19th De-
cember spent the evening at
Mrs. Martin's in Newburyport;
was there from seven o'clock
till after the bell rung for nine.
Joseph Jackman was there the
whole time. He went to New
York in search of some prop-
erty there or in Philadelphia
about a weeK afterwards.

Mrs. Ann Martin. I know that
Jackman was at my house about
half past seven that evening. I
went out and returned about
nine, and he was there still.

Aaron Kenniston. Had about
five or six dollars in the house,
which I had been a long while
laying by to pay my rates. They
said they were tax-gatherers of
the United States, and wanted
my tax. I told them I could not
pay it then, and they must wait.
They asked me how much money
I had got. I told them I had
got a little in my pocket-book
at home, that I had saved to pay
my rates. They said I had got
gold; and I told them I had not
seen a piece of gold for sixteen
years. I let my son have money
when he went to Newburyport;
I let him have a two dollar bill
to help his brother with, and
when he came back he gave me
back one. Never knew of their
having any money the whole
winter. I heard my wife say,
she had some hard money, but
I never saw it. Never knew my
sons to go where the bill was
found; that's where my wife
kept her things.

David Chapman. Have vis-
ited Kenniston's house and know

260

XIV. AMERICAN STATE TRIALS.

that the sons live as the old
gentleman has stated.
Captain Durell. Know the

Kennistons live as has been
stated; the old gentleman has
stated things as they are.

WITNESSES FOR THE COMMONWEALTH AGAIN.

Mary Howe. Know Reuben
Taber; saw him last the 23rd of
December. He wanted my son
to do something for him. I told
him my son had got a good place
and had been there three weeks.
Besides I did not like Mr. Taber
very well.

John Page. A man by the
name of McKennister said Taber
was a suspicious person and I
told Goodridge.

Levi French. Had a conversa-

tion with Levi Kenniston on the
subject of the robbery. I pressed
him to tell and he said it would
be time enough when he was
obliged to.

Jacob Cobum. Was at Pear-
son's when the search was made.
As we were going up Major
Goodridge said, "Let us empty
our pockets that it may not be
said we have deposited money
there."

April 24.

The Prisoner's counsel moved that Reuben Taber who was in-
dicted jointly with the defendants should be put to the bar and
tried so that if nothing appeared against him he might be acquitted
and the prisoners be entitled to the benefit of his testimony.

Taber was then arraigned and pleaded NOT GUILTY. The So-
licitor General entered a nolle prosequi to the indictment against
him and he was accordingly discharged.

Reuben Taber. Was commit-
ted to jail on an execution in
favor of Leach and Morrison last
December. Did not go out of
Boston till I was arrested and
carried to Newburyport. First
saw Major Goodridge in New-
buryport at the time I was ar-
rested and never till then. Never
had any conversation with him
or made any disclosures to him
on the prisoners at the bar. I
never in my life saw them till-
this moment except from my
window this morning as they
passed from the jail.

Thomas Pearson. Was pres-
ent when the major came with
his magicians to search. My fa-
ther desired me to watch Major

Goodridge, saying it was as easy
for folks to put money in places
as to find it. I did, and kept
close to him. As it was very
cold, they all went into the bar
room. While they were there, a
traveller came and wanted his
horse baited. I thought, as they
were all in, I might seize a mo-
ment, to go and wait upon him.
As I was coming out of the barn,
I saw Major Goodridge coming
out of the necessary, and coming
round the backside of the house.
He passed over" the route where
the money was found. He could
have dropped the money without
iny seeing him.

Deacon Edward Dorr. On
22d February was requested

LEVI AND LABAN KENNISTON.

261

to go to the bridge by Ebenezer
Pearson, Jr. I accompanied him
and took up in my way 'squire
Nye. I went to the back side
of the house and found a col-
lection of people standing
around the money and wonder-
ing at it. In the snow I could
see the edges of the doubloons.
I poured boiling water all
around and found six pieces.
The women said: "Do not
leave it till somebody comes
from Newburyport." Mr. Knapp
soon after came. I found it had
sunk three inches through the
new snow which was frozen.
The old snow was three inches
from the ground.

Jacob Coburn.

Mr. Webster. When did you
find the papers in the necessary
vault at Pearson's? In the sec-
ond search, the same day the
search was made with the
witch-hazel and metallic rods.
Two of them much defaced with
filth and the others on the ice
in the vault; some of them had
frost on them — frozen down.

Major Goodridge.

Mr. Webster. Look at Taber
— is he the man you saw and
conversed with and who made

the disclosures to you at Bos-
ton? I think he is; I am not
positive.

Taber then said, looking Good-
ridge steadily in the face, "A
man who ever saw me once,
would not forget me."

Mr. Webster. Major Good-
ridge, did the person, with
whom you conversed in Boston,
answer to the name of Taber,
and converse with you as Ta-
ber? He did.

William Jones. The latter
part of January I went to Maj.
Goodridge to a place he ap-
pointed to meet Taber; another
gentleman found the clothes
with which Goodridge disguised
himself. We went to the mar-
ket, where Goodridge left us,
and did not return under three
quarters of an hour; think Ta-
ber was the man I saw with
Goodridge; I think he was, ac-
cording to the best of my judg-
ment.

Major Goodridge.

Mr. Knapp. Did you derive your
first information of the Kennis-
tons from this man? I did not.
Caldwell informed me of his sus-
picion of them; but said they
had not pluck enough to do it.

The Solicitor General moved for leave to introduce testimony to
Major Goodridge's good character. It was objected to by the pris-
oner's counsel, upon the ground that it was not within the rule;
and that they had not attempted to discredit him.

Judge Putnam. I consider Major t-roodridge as much upon his
trial for perjury, as the prisoners for robbery.

Mr. Webster. I have no objection, if your honor will render the
same judgment.

Rev. Mr. Cochran. Reside at
Cambridge now. Major Good-
ridge was born near my native
place; knew him till he was 18
years old; had always felt an
interest for Major Goodridge as

there had been an intimacy be-
tween our families. His gener-
al character stands as fair as
any — never knew one more fair;
have often made inquiries about
him; he formerly kept school.

262

XIV. AMERICAN STATE TRIALS.

Zadock French. Live in Bos-
ton; have known him about six
years. He hires a store in Ban-
gor of me. Have had constant
commercial intercourse with
him; his character is remark-
ably correct and good; this have
heard at Bangor and from his
acquaintance.

John Parker, of Bangor. Ma-
jor Goodridge went there in
1812; our stores are near to-
gether; his character is fair and
never heard anything against
him in my life.

Mr. Garland of Bangor. Mr.
Goodridge has resided in my
family; his character is very
fair; he is a man of credit and
business there.

Stephen Kimball. Live at
Bangor; his character is very
fair; is in good credit and busi-
ness.

Dr. George Osgood of Danvers.
First knew Mr. Goodridge in
1806 in Danvers. We boarded
together in the same family
about six months; afterward
lived near him two years — his
character was as good as any
man's I have known.

Wm. Gale. Was at Newbury,
Dec. 19th, in the evening, going
eastward — passed the bridge
about 8 o'clock, going to Ames-
bury; just by the hay-scales

met 3 men, loitering, not at all
in a hurry; two short, and one
tall man — the tall one spoke —
he seemed to be a kind of a
blackguarding characte r —
couldn't understand what he
said — 'twas about 8 o'clock when
I saw them — next morning he
spoKe of it — have never been
called to testify before.

Miss Taber. Father wore a
very dark, surtout last winter —
he has not had a light one for
three years.

James Harrison. Never saw
Taber wear a light or any sur-
tout.

Stephen Howard. The morn-
ing after the robbery, in the
room at Pearson's, saw the glove
and pistol, and examined them
— the pistol was a large horse
pistol, about a nine inch barrel;
the lock of the pistol was
bloody; the pan was not dirty,
nor the muzzle, as if they had
been fired recently; put my fin-
ger into the barrel: it was not
soiled; asked for a white rag;
then rammed down a piece of
India Cotton in the barrel; it
had no soil on it, there was only
a little dry dust at the bottom;
a little pulverized powder — then
gave my opinion, and now think
the pistol could not have been
fired the night before.

ME. WEBSTER FOE THE PEISONEES.

Gentlemen: It was true that the offense charged was not
capital but perhaps this could hardly be considered as favor-
able to the defendants. To those who are guilty and without
hope of escape, no doubt the lightness of the penalty of trans-
gression gives consolation. But if the defendants were inno-
cent it was more natural for them to be thinking upon what
they had lost by that alteration of the law which left highway

LEVI AND LABAN KENNISTON. 263

robbery no longer capital, than upon what the guilty might
gain by it. They had lost those great privileges, in their
trial, which the law allows, in capital cases, for the protec-
tion of innocence against unfounded accusation. They have
lost the right of being previously furnished with a copy of
the indictment, and a list of the government witnesses.
They have lost the right of peremptory challenge, and not-
withstanding the prejudices which they know have been ex-
cited against them, they must show legal cause of challenge, in
each individual call, or else take the jury as they find it.
They have lost the benefit of the assignment of counsel by the
court. They have lost the benefit of the Commonwealth's
process to bring in witnesses in their behalf. When to these
circumstances, it was added that they were strangers, in a
great degree without friends, and without the means for
preparing their defense, it was evident they must take their
trial under great disadvantages.

Mr. Webster then called the attention of the jury to those
circumstances, which he thought could not but cast doubts
on the story of the prosecutor.

In the first place, it was impossible to believe a robbery
of this sort to have been committed by three or four men,
without previous arrangement and concert, and of course
without the knowledge of the fact that Goodridge would be
there, and that he had money. They did not go on the
highway, in such a place, in a cold December's night for the
general purpose of attacking the first passenger, running the
chance of his being somebody who had money. It was not
easy to believe that a gang of robbers existed, that they acted
systematically, communicating intelligence to one another,
and meeting and dispersing as occasion required, and that this
gang had their head-quarters in such a place as Newburyport ;
no town is more distinguished for the correctness of the
general habits of its citizens, and it is of such a size that
every man in it may be known to all the rest. The pursuits,
occupations and habits of every person within it are within
the observation of his neighbors. A suspicious stranger

264 XIV. AMERICAN STATE TRIALS.

would be instantly observed, and all his movements could be
easily traced. This is not the place to be the general ren-
dezvous of a gang of robbers. Offenders of this sort hang
on the skirts of great cities. From the commission of their
crimes they hasten into the crowd, and hide themselves in the
populousness of great cities. If it were wholly improbable
that a gang existed in such a place for the purpose of general
plunder, the next inquiry was, was there any reason to think
that there had been a special or particular combination, for
the single purpose of robbing the prosecutor? Now it was
material to observe, that not only was there no evidence of
any such combination, but also that circumstances did exist
which rendered it next to impossible that the defendants
could have been parties to such a combination or even that
they could have any knowledge of the existence of any such
man as Goodridge, or that any person, with money, was ex-
pected to come from the Eastward and to be near Essex
Bridge, at or about 9 o'clock that evening.

One of the defendants had been for some weeks in New-
buryport — the other passed the bridge from New Hampshire,
at 12 o'clock,( on the 19th. At this time Goodridge had not
yet arrived at Exeter, twelve or fourteen miles from the
bridge. How then could either of the defendants know that
he was coming? Besides, he says that nobody knew, on the
road, that he had money, as far as he knows, and nothing
happened till he reached Exeter, according to his account,
from which it might be conjectured that he carried money.
Here, as he relates it, it became known that he had pistols,
and he must wish you to infer, that the plan to rob him was
laid here, at Exeter, by some of the persons who inferred
that he had money from his being armed. Who were these
persons? Certainly not the defendants, or either of them.
Certainly not Taber. Certainly not Jackman. Were they
persons of suspicious character? Was he in a house of a sus-
picious character? On this point he gives us no information.
He has either not taken the pains to inquire, or he chooses
not to communicate the result of his inquiries. Yet nothing

LEVI AND LABAN KENNISTON. 265

could be more important, since he seems compelled to lay
the scene of the plot against him at Exeter, than to know,
who the persons were that he saw, or that saw him at that
place. On the face of the facts now proved, nothing could be
more improbable than that the plan of robbery was con-
certed at Exeter. If so, why should those who concerted
send forward to Newburyport to engage the defendants, es-
pecially as they did not know that they were there? What
should induce any persons so suddenly to apply to the de-
fendants to assist in a robbery? There was nothing in their
personal character or previous history that should induce
this.

Nor was there time for all this. If the prosecutor had not
lingered on the road, for reasons not yet discovered, he
must have been in Newburyport long before the time at
which he states the robbery to have been committed. How,
then, could any one expect to leave Exeter, come to Newbury-
port, fifteen miles, there look out for and find assistants for
a highway robbery, and get back two miles to a convenient
place for the commission of the crime ? That any body should
have undertaken to act thus was wholly improbable, and in
point of fact there is not the least proof of any body's travel-
ling that afternoon, from Exeter to Newburyport, or of any
person who was at the tavern at Exeter, having left it that
afternoon. In all probability, nothing of this sort could have
taken place, without being capable of detection and proof.
In every particular the prosecutor has wholly failed to show
the least probability of a plan to rob him having been laid
at Exeter.

But how comes it, that Goodridge was near or quite four
hours and a half in travelling a distance which might have
been travelled in two hours or two hours and a half? He
says he missed his way, and went the Salisbury road. But
some of the jury know that this could not have delayed him
more than five or ten minutes. It would be well to be able
to give some better account of this delay.

Failing, as he seems to do, to create any belief that a plan

266 XIV. AMERICAN STATE TRIALS.

to rob him was fixed at Exeter, the prosecutor goes back to
Alfred, and says he saw there a man whom Taber resembles.
But Taber is proved to have been at that time, and at the
time of the robbery, in Boston. This is proved beyond ques-
tion. It is so certain, that the Solicitor has non prossed the
indictment against him.

There is an end, then, of all pretence of the adoption of a
scheme of robbery at Alfred: this leaves the prosecutor
altogether unable to point out any manner in which it should
become known that he had money, or in which a design to
rob him should originate.

It was next to be considered whether the prosecutor's story
was either natural or consisitent. But, in the threshold of
the inquiry every one puts the question, what motive had
the prosecutor to be guilty of the abominable conduct of
feigning a robbery? It is difficult to assign motives. The
jury did not know enough of his character or circumstances.
Such things had happened, and might happen again. Sup-
pose he owed money in Boston, and had it not to pay? Who
knows how high he might estimate the value of a plausible
apology? Some men have also a whimsical ambition of dis-
tinction. There is no end to the variety of modes in which
human vanity exhibits itself. A story of this nature excites
the public sympathy. It attracts general attention. It causes
the name of the prosecutor to be celebrated as a man who
has been attacked, and after a manly resistance, overcome by
robbers, and who has renewed his resistance, as soon as re-
turning life and sensation enabled him, and after a second
conflict has been quite subdued, beaten and bruised out of
all sense and sensation, and finally left for dead on the field.
It is not easy to say how far such motives, trifling and ridicu-
lous as most men would think them, might influence the
prosecutor, when connected with any expectation of favor or
indulgence, if he wanted such from his creditors. It was
to be remembered, that he probably did not see all the con-
sequences of his conduct, if his robbery be a pretence. He
might not intend to prosecute any body. But he probably

LEVI AND LABAN KENNISTON. 267

found, and indeed there is evidence to show, that it was
necessary for him to do something to find out the authors of
the alleged robbery. He manifested no particular zeal on
this subject. He was in no haste. He appears rather to
have been pressed by others to do that which we should sup-
pose he would be most earnest to do, the earliest moment.

But could he so seriously wound himself — could he or
would he shoot a pistol bullet through his hand, in order to
render the robbery probable, and to obtain belief in his
story? All exhibitions are subject to accidents. Whether
they are serious are farcical, they may, in some particulars,
not proceed exactly as they are designed to do. If we knew
that this shot through the hand, if made by himself, must
have been intentionally made by himself, it would be a cir-
cumstance of greater weight. The bullet went through the
sleeve of his coat. He might intend it should have gone
through nothing else. It was quite certain he did not receive
this wound in the way he described. He says he was pulling
or thrusting aside the robber's pistol, and while his hand was
on it, it was fired and the contents passed through his hand.
This could not have been so, because no part of the contents
went through the hand, except the ball. There was powder
On the sleeve of his coat, and from the appearance one would
think the pistol to have been three or four feet from the
hand when fired. The fact of the pistol bullet being fired
through the hand is doubtless a circumstance of weight. It
may not be easy to account for it; but it is to be weighed
with other circumstances.

It was most extraordinary, that in the. whole case the prose-
cutor should prove hardly any fact, in any way but by his own
oath. He chooses to trust everything on his own credit with
the jury. Had he the money with him, which he mentions?
If so, his clerks or persons connnected with him in business
must have known it; yet no witness is produced. Nothing
can be more important than to prove that he had the money.
Yet he does not prove it. Why should he leave this essential
fact without further support? He is not surprised with this

268 XIV. AMERICAN STATE TRIALS.

defense — he knew what it would be. He knew that nothing
could be more important than to prove that in truth he did
possess the money which he says he lost; yet he does not
prove it. All that he saw, and all that he did, and every
thing that occurred to him until after the alleged robbery,
rests solely on his own credit. He does not see fit to corrbor-
ate any fact by the testimony of any witness. So he went to
New York to arrest Jackman. He did arrest him. He swears
positively that he found in his possession papers which he
lost at the time of the robbery; yet he neither produces the
papers themselves, nor the persons who assisted in the
search.

In like manner he represents his intercourse with Taber at
Boston. Taber he says made certain confessions. They
made a bargain for a disclosure or confession on one side, and
a reward on the other. But no one heard these confessions
except Goodridge himself. Taber now confronts him, and
pronounces this part of his story to be wholly false, and there
is nobody who can support the prosecutor.

A jury cannot too seriously reflect on this part of the case.
There are many most important allegations of fact, which,
if true, could easily be shown by other witnesses and yet are
not shown.

How came Mr. Goodridge to set out from Bangor, armed
in this formal and formidable manner? How came he to be
so apprehensive of a robbery? The reason he gives is com-
pletely ridiculous. As the foundation of his alarm, he tells a
story of a robbery which he had heard of, but which, as far
as appears, no one else ever heard of, and the story itself is
so perfectly absurd, it is difficult to resist the belief that it
was the product of Ins imagination at the moment. He seems
to have been a little too confident that an attempt would be
made to rob him. The manner in which he carried his money,
as he says, indicated a strong expectation of this sort. His
gold he wrapped in a cambric cloth, put it into a shot bag,
and then into his portmanteau. One parcel of bills, of a
hundred dollars in amount, he put into his pocket book — an-

LEVI AND LABAN KENNISTON. 269

other of somewhat more than a thousand dollars, he carried
next his person, underneath all his clothes. Having disposed
of his money, in this way, and armed himself with two good
pistols, he set out from Bangor. The jury would judge
whether this extraordinary care of his money, and this formal
arming of himself to defend it, did not appear a good deal
suspicious.

He stated that he did not travel in the night. That he
would not so much expose himself to robbers. He said that
when he came near Alfred, he did not go into the village,
but stopped a few miles short, because night was coming on,
and he would not trust himself and his money out at night.
He represents himself to have observed this rule constantly
and invariably until he got to Exeter. Yet, when the time
came for the robbery, he was found out at night. He left
Exeter about sunset intending to go to Newburyport, fifteen
miles distant that evening. "When he is asked how this should
happen, he says he had no fear of robbers after he left the
District of Maine. He thought himself quite safe, when he
arrived at Exeter. Yet he told the jury, that at Exeter he
thought it necessary to load his pistol afresh. He asked for a
private room at the inn. He told the persons in attendance
that he wished such a room for the purpose of changing his
clothes. He charged them not to suffer him to be interrupted.
But he says his object was not to change his dress, but to put
new loading into his pistol. What sort of a story was this?

He says he now felt himself out of all danger from robbers,
and was therefore willing to travel at night. At the same
time he thought himself in very great danger from robbers,
and therefore took the utmost pains to keep his pistols well
loaded and in good order. To account for the pains he took
about loading his pistols at Exeter, he says it was his in-
variable practice, every day after he left Bangor, to discharge
and load again one or both of his pitsols; that he never
missed doing this; that he avoided doing it at the inns, lest
he should create suspicion, but that he did it, while alone, on
the road every day.

270 XIV. AMERICAN STATE TRIALS.

How far this was probable the jury would judge. It would
be observed that he gave up his habits of caution, as he ap-
proached the place of the robbery. He then loaded his pistols
at the tavern, where persons might and did see him, and he
then also travelled in the night. He passed the bridge over
Merrimack river a few minutes before nine o'clock. He was
now at a part of his progress where he was within observation
of other witnesses, and something could be known of him be-
sides what he told of himself. Immediately after him passed
the two persons with their wagons, Shaw and Keyser. Close
upon them followed the mail stage. Now these wagons and
the stage must have passed within three rods, at most, of
Goodridge, at the very time of the robbery. They must have
been very near the spot, the very moment of the attack, and
if he was under the robbers' hands as long as he represents,
or if they staid on the spot long enough to do half what he
says they did do, they must have been there when the wagons
and the stage passed. At any rate, it is next to impossible,
by any computation of time, to put these carriages so far
from the spot as that the drivers should not have heard the
cry of murder which he says he raised, or the report of the
two pistols which he says were discharged. In three-quarters
of an hour, or an hour, he returned, and re-passed the bridge.

The jury would next naturally look to the appearances
exhibited on the field, after the robbery. The portmanteau
was there. The witnesses say that the straps which fastened
it to the saddle had been neither cut nor broken. They were
carefully unbuckled. This was very considerate, for robbers.
It had been opened, and its contents were scattered about the
field. The pocket book, too, had been opened, and many
papers it contained found on the ground. Nothing valuable
was lost but money. The robbers did not think it well to go
off at once, with the pormanteau and the pocket book. The
place was so secure, so remote, so unfrequented, they were
so far from the highway — at least one full rod — there were
so few persons passing, probably not more than four or five
then in the road, within hearing of the pistols and the cries

LEVI AND LAB AN KENNISTON. 27 1

of Goodridge; there being too not above five or six dwelling
houses, full of people, within the hearing of the report of a
pistol. These circumstances were all so favorable to their
safety, that the robbers sat down to look over the prosecutor's
papers, carefully examined the contents of his pocket book
and pormanteau, and took only the things which they needed !
There was money belonging to other persons. The robbers
did not take it. They found out it was not the prosecutor's
and left it. It may be said to be favorable to the prosecutor's
story, that the money which did not belong to him, and the
plunder of which would seem to be the most probable induce-
ment he could have to feign a robbery, was not taken. But
the jury would consider whether this circumstance did not
bear quite as strong the other way, and whether they can
believe that robbers could have left this money either from
accident or design.

The robbers, by Goodridge 's account, were extremely care-
ful to search his person. Having found money in his port-
manteau and in his pocket book, they still forthwith stripped
him to the skin, and searched until they found the sum which
had been so carefully deposited under his clothes. Was it
likely, that having found money in the places where it is
ordinarily carried, robbers should proceed to search for more,
where they had no reason to suppose more would be found?
Goodridge says that no person knew of his having put his
bills in that situation. On the first attack, however, they
proceeded to open one garment after another until they
penetrated to the treasure, which was beneath them all.

The testimony of Mr. Howard was material. He examined
Goodridge 's pistol which was found on the spot, and thinks
it had not been fired at all. If this be so, it would follow that
the wound through the hand was not made by this pistol ; but,
then, as the pistol was then discharged, if it had not been
fired, he is not correct in swearing that he fired it at the
robbers, nor could it have been loaded at Exeter, as he
testified.

In the whole case, there was nothing perhaps more deserv-

272 XIV. AMERICAN STATE TRIALS.

ing consideration, than the prosecutor's statement of the
violence which the robbers used towards him. He says he was
struck with a heavy club, on the back part of his head. He
fell senseless to the ground. Three or four rough-handed
ruffians then dragged him to the fence, and through it or over
it, with such force as to break one of the boards. They then
plundered his money. Presently he came to his senses ; per-
ceived his situation ; saw one of the robbers sitting or standing
near; he valiantly sprung upon, and would have overcome
him, but the ruffian called out for his comrades, who returned
and all together they renewed their attack upon, subdued him,
and redoubled their violence. They struck him heavy blows;
they threw him violently to the ground; they kicked him in
the side; they chocked him; one of them, to use his own
words, jumped upon his breast. They left him only when
they supposed they had killed him. He went back to Pear-
son's, at the bridge, in a state of delirium, and it was several
hours before his recollection came to him. This is his ac-
count. Now, in point of fact it was certain, that on no part of
his person was there the least mark of this beating and
wounding. The blow on the head, which brought him sense-
less to the ground, neither broke the skin, nor caused any
tumor, nor left any mark whatever. He fell from his horse
on the frozen ground, without any appearance of injury.
He was drawn through or over the fence with such force as to
break the rail, but not at all to leave any wound or scratch
on him. A second time he is knocked down, kicked, stamped
upon, choked, and in every way abused and beaten till sense
had departed, and the breath of life hardly remained, and yet
no wound, bruise, discoloration, or mark of injury was found
to result from all this. Except the wound in his hand, and
a few slight punctures in his left arm, apparently made with
his own penknife, which was found open on the spot, there
was no wound or mark which the surgeons, upon repeated
examinations could any where discover. This was a story
not to be believed. No matter who tells it, it is so impossible
to be true, that all belief is set at defiance. No man can be-

LEVI AND LAB AN KENNISTON. 273

lieve it. All this tale of blows which left no marks, and of
wounds which could not be discovered, must be the work of
imagination. If the jury could believe that he was robbed,
it was impossible they should or could believe his account of
the manner of it.

With respect, next, to delirium. The jury had heard the
physicians. Two of them had no doubt it was all feigned.
Dr. Spofford had spoken in a more qualified manner, but it
was very evident his opinion agreed with theirs. In the
height of his raving, the physician who was present said to
others, that he could find nothing the matter of the man,
and that his pulse was perfectly regular. But consider the
facts which Dr. Balch testifies. He suspected the whole of
this illness and delirium to be feigned. He wished to ascer-
tain the truth. While he or others was present, Goodridge
appeared to be in the greatest pains and agony from his
wounds. He could not turn himself in bed, nor be turned by
others without infinite distress. His mind too was as much
disordered as his body. He was constantly raving about
robbery and murder. At length the physicians and others
withdrew, and left him alone in the room. Dr. Balch re-
turned softly to the door, which he had left partly open,
and there he had a full view of his patient, unobserved by
him. Goodridge was then very quiet. His incoherent ex-
clamations had ceased. Dr. Balch saw him turn over in bed,
without inconvenience. Pretty soon he sat up in bed, and
adjusted his neckcloth and his hair. Then, hearing footsteps
on the stair case, he instantly sunk into the bed again; his
pains all returned, and he cried out against robbers and mur-
derers as loud as ever. Now these facts are all sworn to by
an intelligent witness, who cannot be mistaken in them, a
respectable physician whose veracity or accuracy is in no
way impeached or questioned. After this, it was difficult to
retain any good opinion of the prosecutor. Robbed or not
robbed, this was his conduct, and such conduct necessarily
takes away all claim to sympathy and respect. The jury
would consider whether it did not also take away all right to

274 XIV. AMERICAN STATE TRIALS.

be believed in any thing. For if they should be of opinion
that in any one point he had intentionally misrepresented
facts, he could be believed in nothing. No man was to be
convicted on the testimony of a witness whom the jury had
found wilfully violating the truth in any particular.

The next part of the case was, the conduct of the prose-
cutor, in attempting to find out the robbers, after he had
recovered from his illness. He suspected Mr. Pearson, a
very honest, respectable man, who keeps the tavern at the
bridge. He searched his house and premises. He sent for a
conjurer to come, with his metallic rods and witch hazel, to
find the stolen money. Goodridge says now that he thought
he should find it, if the conjurer's instruments were properly
prepared. He professes to have full faith in the art. Was
this folly, or fraud, or a strange mixture of both? Pretty
soon after the last search, gold pieces were actually found
near Mr. Pearson's house, in the manner stated by the female
witness. How came they there? Did the robber deposit
them there? That is not possible. Did he accidentally leave
them there? "Why should not a robber take as good care of
his money as others? It is certain, too, that the gold pieces
were not put there at the time of the robbery, because the
ground was then bare, but when these pieces were found there
were several inches of snow below them. When Goodridge
searched here with his conjuror, he was on this spot, alone
and unobserved as he thought. Whether he did not, at that
time, drop his gold into the snow, the jury will judge. When
he came to this search, he proposed something very ridiculous.
He proposed that all persons about to assist in the search
should be examined, to see that they had nothing which they
could put into Pearson's possession, for the purpose of being
found there. But how was this examination to be made?
Why, truly, Goodridge proposed that every man should ex-
amine himself, and that, among others, he would examine
himself, till he was satisfied he had nothing in his pockets
which he could leave at Pearson 's, with the fraudulent design
of being afterwards found there, as evidence against Pearson.
What construction would be given to such conduct?

LEVI AND LAB AN KENNISTON. 275

As to Jackman, Goodridge went to New York and arrested
him. In his room he says he found paper coverings of gold,
with his own figures on them, and pieces of an old and use-
less receipt, which he can identify, and which he had in his
possession at the time of the robbery. He found these things
lying on the floor in Jackman 's room. What should induce
the robbers, when they left all other papers, to take this
receipt, and what should induce Jackman to carry it to New
York, and keep it, with the coverings of the gold, in a situa-
tion where it was likely to be found, and used as evidence
against him?

There was no end to the series of improbabilities grow-
ing out of the prosecutor's story.

One thing especially deserves notice. Wherever Goodridge
searches, he always finds something; and what he finds he
can identify and swear to as being his. The thing found has
always some marks by which he knows it. Yet he never
finds much. He never finds the mass of his lost treasure. He
finds just enough to be evidence, and no more.

These were the circumstances, which tended to raise doubts
of the truth of the prosecutor 's relation. It was for the jury
to say, whether it would be safe to convict any man for this
robbery, until their doubts should be cleared up. No doubt
they were to judge him candidly, but they were not to make
every thing yield to a regard to his reputation, or a desire to
vindicate him from the suspicion of a fraudulent prosecution.

He stood like other witnesses, except that he was a very
interested witness, and he must hope for credit, if at all,
from the consistency and general probability of the facts
to which he testified. The jury would not convict the
prisoners to save the prosecutor from disgrace. He had had
every opportunity of making out his case. If any person in
the state could have corroborated any part of his story, that
person he could have produced. He had had the benefit of
full time, and good counsel, and of the Commonwealth's pro-
cess to bring in his witnesses. More than all, he had an oppor-
tunity of telling his own story, with the simplicity that be-

276 XTV. AMERICAN STATE TRIALS.

longs to truth, if it were true, and the frankness and
earnestness of an honest man, if he be such. It was for the
jury to say, under their oaths, how he had acquitted himself
in these particulars, and whether he had left their minds
free of doubt about the truth of his narration.

But if Goodridge were really robbed, was there satisfactory
evidence that the defendants had a hand in the commission
of this offense? The evidence relied on is the finding of the
money in their house. It appeared that these defendants
lived together, and, with a sister, constituted one family.
Their father lived in another part of the same house, and
with his wife constituted another and distinct family. In
this house, some six weeks after the robbery, the prosecutor
made a search, and the result has been stated by the wit-
nesses. Now, if the money had been passed, or used by the
defendants, it might have been conclusive. If found about
their persons, it might have been very strong proof. But,
under the circumstances of this case, the mere finding of
money in their house, and that only in places where the
prosecutor had previously been, was no evidence at all. With
respect to the gold pieces, it was certainly true, that they
were found in Goodridge's track. They were found only
where he had been and might have put them.

When the sheriff was in the house, and Goodridge in the
cellar, gold was found in the cellar. When the sheriff was
up stairs, and Goodridge in the rooms below, the sheriff was
called down to look for money where Goodridge directed and
there money was found. As to the bill, the evidence is not
quite so clear. Mr. Leavitt says he found a bill in a drawer,
in a room in which none of the party had before been. That
he thought it an uncurrent or counterfeit bill, and not a part
of Goodridge's money, and left it where he found it, without
further notice. An hour or two afterward, Upton perceived
a bill in the same drawer, Goodridge being then with or near
him, and called to Leavitt. Leavitt told him that he had
discovered that bill before, but that it could not be Good-
ridge's. The bill was then examined. Leavitt says he looked

LEVI AND LABAN KENNISTON. 277

at it and saw writing on the back of it. Upton says he looked
at it, and saw writing on the back of it. He says also that
it was shown to Goodridge, who examined it in the same way
that he and Leavitt examined it. None of the party at this
time suspected it to be Goodridge 's. It was then put into
Leavitt 's pocket book, where it remained till evening, when
it was taken out at the tavern, and then it turned out to be,
plainly and clearly, one of Goodridge 's bills, and had the
name "James Poor, Bangor," in Goodridge 's own hand-
writing on the back of it. The first thing that strikes one, in
this account, is, why was not this discovery made at the time ?
Goodridge was looking for bills, as well as gold. He was
looking for Boston bills — for such he had lost. He was look-
ing for ten dollar bills, for such he had lost. He was look-
ing for bills which he could recognize and identify. He
would therefore naturally be particularly attentive to any
writing or marks upon such as he might find. Under these
circumstances, a bill is found in the house of the supposed
robbers. It is a Boston bill — it is a ten dollar bill — it has
writing on the back of it — that writing is the name of his
town, and the name of one of his neighbors — more than all,
that writing is his own hand writing! — notwithstanding all
this, neither Goodridge, nor Upton, or the sheriff examined
the bill, so as to see whether it was Goodridge 's money. Not-
withstanding it so fully resembled, in all points, the money
they were looking for, and notwithstanding they also saw
writing on the back of it, which they must know, if they read
it, would probably have shown where the bill came from, yet
neither of them did so far examine it as to see any proof of
its being Goodridge 's. This was hardly to be believed. It
must be a pretty strong faith in the prosecutor that could
credit this story. In every part of it, it was improbable and
absurd. It was much more easy to believe that the bill was
changed. There might have been, and there probably was, an
uncurrent or counterfeit bill, found in the drawer by Leavitt.
He certainly did not at the time think it to be Goodridge 's,
and he left it in the drawer where he found it. Before he

278 XIV. AMERICAN STATE TRIALS.

saw it again, the prosecutor had been in that room, and was in
or near it, when the sheriff was again called in, and asked to
put that bill in his pocket book. How did the jury know that
this was the same bill which Leavitt had before seen? Or,
suppose it was, Leavitt carried it to Coffin's, in the evening
he produced it, and after having been handed about for
sometime among the company, it turned out to be Good-
ridge's bill, and to have upon it infallible marks of indentity.
How did the jury know that a sleight of hand had not
changed the bill at Coffin's? It is sufficient to say, the bill
might have been changed. It is not certain that this is the
bill which Leavitt first found in the drawer — and this not
being certain, it is not proof against the defendants.

Was it not extremely improbable, if the defendants were
guilty, that they should deposit the money in the places
where it was found? Why should they put it in small par-
cels in so many places, for no end but to multiply the chances
of detection? Why, especially, should they put a doubloon
in their father's pocket-book? There is no evidence, nor any
ground of suspicion, that the father knew of the money being
in his pocket-book. He swears he did not know it. His
general character is unimpeached, and there is nothing against
his credit. The inquiry at Stratham was calculated to elicit
the truth, and, after all, there is not the slightest reason to
suspect that he knew that the doubloon was in his pocket-
book. What could possibly induce the defendants to place it
there? No man can conjecture a reason. On the other hand
— if this were fraudulent proceeding on the part of the prose-
cutor, this circumstance could be explained. He did not know
that the pocket-book, and the garment in which it was found,
did not belong to one of the defendants. He was as likely
therefore, to place it there as elsewhere. It was very material
to consider that nothing was found in that part of the house,
which belonged to the defendants. Everything was dis-
covered in the father's apartments. They were not found,
therefore, in the possession of the defendants, any more than
if they had been discovered in any other house in the neigh-

LEVI AND LAB AN KENNISTON. 279

borhood. The two tenements, it was true, were under the
same roof. But they were not on that account the same tene-
ments, they were as distinct as any other houses. Now, how
should it happen that the several parcels of money should all
be found in the father's possession? He is not suspected —
certainly there is no reason to suspect him — of having had
any hand either in the commission of the robbery, or the con-
cealing of the goods. He swears he had no knowledge of any
part of this money being in his house. It is not easy to
imagine how it came there, unless it be supposed to be put
there by some one who did not know what part of the house
belonged to the defendants, and what did not.

The witnesses on the part of the prosecution have testified,
that the defendants when arrested manifested great agitation
and alarm; paleness overspread their faces, and drops of
sweat stood on their temples. This satisfied the witnesses of
the defendants' guilt, and they now state the circumstance
as being indubitable proof. This argument manifests, in those
who use it, equal want of sense and sensibility. It is pre-
cisely fitted to the feeling and" intellect of a bum-bailiff. In
a court of justice, it deserves nothing but contempt. Is there
nothing that can agitate the frame or excite the blood, but
the consciousness of guilt? If the defendants were innocent,
would they not feel indignation at this unjust accusation?
If they saw an attempt to produce false evidence against
them, would they not be angry? And seeing the production
of such evidence, might they not feel fear and alarm? And
have indignation, and anger, and terror, no power to affect
the human countenance, or the human frame?

Miserable, miserable, indeed, is the reasoning which would
infer any man's guilt from his agitation, when he found him-
self accused of a heinous offense; when he saw evidence,
which he might know to be false and fraudulent brought
against him ; when his house was filled, from the garret to the
cellar, by those whom he might esteem as false witnesses;
and when he himself, instead of being at liberty to observe
their conduct and watch their motions, was a prisoner in close

280 XIV. AMERICAN STATE TRIALS.

custody in his own house, with the fists of a catch-poll
clenched upon his throat.

The defendants were at Newburyport the afternoon and
evening of the robbery. For the greater part of the time, they
show where they were and what they were doing. Their
proof, it is true, does not apply to every moment. But, when
it is considered that, from the moment of their arrest, they
have been in close prison, perhaps they have shown as much
as could be expected. Few men, when called on afterwards,
can remember, and fewer, still, can prove how they have
passed every half hour of an evening. At a reasonable hour
they both came to the house where Laban had lodged the
night before. Nothing suspicious was observed in their man-
ners or conversation. Is it probable they would thus come
unconcernedly into the company of others from a field of
robbery, and, as they must have supposed, of murder, before
they could have ascertained whether the stain of blood was
not on their garments? They remained in the place a part
of the next day. The town was alarmed ; a strict inquiry was
made of all strangers, and of the defendants among others.
Nothing suspicious was discovered. They avoided no inquiry,
nor left the town in any haste. The jury had had an oppor-
tunity of seeing the defendants. Did their general appear-
ance indicate that hardihood which would enable them to act
this cool, unconcerned part? "Was it not more likely they
would have fled ?

From the time of the robbery to the arrest, five or six
weeks, the defendants had been engaged in their usual occu-
pations. They are not found to have passed a dollar of money
to any body. They continued their ordinary habits of labor.
No man saw money about them, nor any circumstance that
might lead to a suspicion that they had money. Nothing oc-
curred tending in any degree to excite suspicions against
them. When arrested, and when all this array of evidence
was made against them, and when they could hope in noth-
ing but their innocence, immunity was offered them again if
they would confess. They were pressed, and urged, and

LEVI AND LAB AN KENNISTON. 28!

allured by every motive which could be set before them, to
acknowledge their participation in the offense, and to bring
out their accomplices. They steadily protested that they
could confess nothing, because they knew nothing. In de-
fiance of all the discoveries made in their house, they have
trusted to their innocence. On that, and on the candour and
discernment of an enlightened jury, they still relied.

If the jury were satisfied that there was the highest im-
probability that these persons could have had any previous
knowledge of Goodridge, or been concerned in any previous
concert to rob him; if their conduct that evening and the
next day was marked by no circumstances of suspicion; if,
from that moment until their arrest, nothing appeared against
them; if they neither passed money, nor are found to have
had money; if the manner of the search of their house, and
the circumstances attending it, excite strong suspicions of
unfair and fraudulent practices; if, in the hour of their ut-
most peril, no promises of safety could draw from the de-
fendants any confessions affecting themselves or others, it
would be for the jury to say whether they could pronounce
them guilty.

THE SOLICITOR GENERAL TO THE JURY.

Mr. Davis. Gentlemen of the Jury: After the learned,
able, and eloquent argument, which has been addressed to you
in behalf of the prisoners, you will readily apprehend the
weight of responsibility which rests upon me. But, inde-
pendent of considerations of this nature, the importance of
this trial to the Commonwealth and Major Goodridge, as
well as to the prisoners, demands our most earnest at-
tention. I have no ambition to raise what little of reputation
I may possess by any attempt at a display of ingenuity and
eloquence ; but I am well aware of the effects which they pro-
duce, and have witnessed them, as well upon other occasions
as upon this present trial. But I shall confine myself wholly
to remarks upon the evidence, and direct your attention to
its appropriate application. There are two points which it

282 XIV- AMERICAN STATE TRIALS.

is my duty to make out to your satisfaction: — First, that a
robbery was committed: Secondly, that the defendants were
concerned in it.

With respect to the first position, the defendants' counsel
seem to have taken it for granted that Major Goodridge has
been guilty of the most atrocious crime; that he has begun
his career with the foulest deceptions, and that he has at-
tempted to support them by the foulest practices; and has
done it by practising against the peace, the happiness, and
the liberty of the defendants. I admit that his feelings
and reputation are deeply interested in the result of this
prosecution; but this is no uncommon case; for in the dis-
charge of my official duties, it has often fallen to my lot to
defend the character of the witnesses introduced by the
government. A principal part of a defense often consists in
arraigning the character of the witnesses ; and in the present
instance, the black, the soul-destroying crime of perjury is
imputed to Major Goodridge. It is impossible that he should
be guilty of the enormities charged upon him. It exceeds all
belief of human depravity: for if what has been ascribed to
him is true, he must be a monster in human shape ; and more
corrupt and perfidious than the Prince of Darkness. Great
God ! is it possible that such a man exists, and that the sun
shines upon him? It is not possible that any man should be
so base, much less a person in the standing of- Major Good-
ridge. No man in the Commonwealth can come into court
with a fairer character: Is it then to be believed that he
would suddenly change his course of conduct, abandon his
good principles, and become the greatest wretch in the uni-
verse ?

There are two ordinary modes of disqualifying and dis-
crediting a witness; one is, to show that he has been con-
victed of an infamous crime. The other is, to show that his
character for truth is so bad, that he is wholly unworthy of
belief. But when his testimony is inconsistent, it is proper
for me to admit, that it is a fair subject of attack.

Gentlemen, if the evidence which you have heard from the

LEVI AND LABAN KENNISTON. 283

witnesses is to be credited, there is sufficient to authorize you
to convict; and with respect to the accusation of the defend-
ants, I will remark to you, that Major Goodridge felt no mal-
ice towards them. He would as soon have gone to the house
of any other persons in New Hampshire, if he had had the
same information as that upon which he proceeded in the
present instance. He had had information that Caldwell, that
Titcomb, that others suspected them; and, finally, he says
Taber made to him the important communication, that they
were concerned in the robbery, and had possession of his
property. With these strong circumstances in his favor, he
comes into your presence and certifies that he was robbed;
and in the first instance it should be pressed upon your ob-
servation, that it appears from his testimony, that the
property of which he was robbed , was his own ; if it had been
otherwise the prisoners' counsel would have shown that his
statement in this particular was false.

It has been suggested, that no evidence has been brought
from New York, by Goodridge, to support the story he tells,
respecting the finding of the pieces of his papers in Jackman 's
room, and that he has not produced these papers; he could
no more bring a witness from New York than he could bring
the city hall. In the one case there is a legal, in the other a
physical impossibility; and the papers were taken by the
police and sealed up. That is the practice there, and so it is
here. Another circumstance is urged, that he has given no
clear account how he came by this money. The law does not
require it of him; reason does not require it. He tells you
a probable story about the gold, that he obtained it at differ-
ent times in the course of his trade, and he was so situated,
that it is extremely probable, that, in the ordinary trans-
action of business, he should collect a quantity of gold. The
British had but lately had possession of a part of that country,
and the gold with which they pay their troops had circulated ;
he had probably trafficked too with the Indians, who dispose
of their furs for gold in Canada, and in some country towns
the banks are not in credit. These things therefore account
for the gold in his possession.

284 XIV. AMERICAN STATE TRIALS.

I do not know whether he has a clerk or not; but even
if he has, it is not necessary that he should know the amount
of his employer's money, or all the means by which it was
collected.

Gentlemen, it is said the property was not all his own;
true, it was not. But all that of which he was robbed, was
his own, while that which belonged to others was saved.
What could have been his motive? Interest it must have
been if anything, in order to embezzle the money of others.
But it happens that the money of others is preserved, while
his own is lost. Do not, gentlemen, step into the regions of
fancy; but be governed by the plain dictates of common
sense.

The fact then is, according to the mode of reasoning adopted
by the prisoners' counsel, Major Goodridge robbed himself
of his own money. Nothing is more absurd and impossible.

In the name of God, if I may be permitted this expression,
what opinion can you have of a man like him, if he is guilty
of this conduct? Is he in debt? There is no evidence of it.
Does he want credit? No; witnesses tell you he is a man of
credit, and that he has property. If he is in debt, why do not
they prove it?

"Who are the prisoners? They are paupers, men whose ex-
treme poverty might drive them to depredate upon the com-
munity. It is said, the reason they are not better prepared
to unravel this affair, and explain all the parts of their
conduct, is, that they have had no means to enable them to
carry on their defense. Yet it seems, men enough have been
found in New Hampshire, to get up a subscription in their
favor, and I hope their counsel will derive benefit from these
exertions.

Now if it were possible for the jury to return upon their
oaths, a verdict thus far, Major Goodridge would be returned
innocent; for it will not be denied that he has received a
shot wound, and one which is calculated to endanger his
life. A shot through the nerves of the hand, with the glove
on at that inclement season, must have threatened a lock-

LEVI AND LAB AN KENNISTON. 285

jaw, the most terrible of all human disorders. Would any
man, did ever any man, however infernal his motives, how-
ever vile his purposes, put them in execution by a course of
conduct so perilous as this?

Facts, gentlemen, which do not come from Major Goodridge,
are in his favor. The pistol was found in the road with blood
upon it, and the whip also. These circumstances prove that.
the pistol was fired in the road. Let me retort ; Major Good-
ridge is going to rifle himself, and in a place to elude dis-
covery: Do you believe he would have shot himself in the
road, and then have made the other arrangements? It is a
most manifest absurdity: it is ridiculous. How does it com-
port with his situation? What does he swear? You recol-
lect his testimony, and all the circumstances concur to sup-
port his relations. He was on horseback. But the gentlemen
say you must not believe a word Goodridge says. It has been
argued that the robbers would not have left so much money
upon the ground; but it is perfectly natural. Alarmed at
their situation, terrified at the fear of discovery, it is not to be
expected they would exercise much deliberation.

As to the delirium, his wounds would have naturally pro-
duced a partial insanity. But it has been said that there was
no reality in it; that he counterfeited madness. But is Dr.
Carter such a blockhead ? Is he such a novice, that he would
take blood from a sane man as though he were crazy? And
what does Dr. Balch say? Why, he says very gravely, that
he, Goodridge, looked at him, Dr. Balch; and when he, Dr.
Balch, looked at him, he, Goodridge, looked another way — and
that when he crept up stairs, Goodridge raised up himself in
the bed upon his posteriors. Why, gentlemen, I really do not
know upon what else he could have raised himself. He
hawked, and composedly spit in the fire ; and notwithstanding
these physicians come before you with faces as long and as
wise as JEsculapius himself, yet it appears they bled him, and
gave him medicine.

What do you hear from Dr. Spofford? why, that he at-
tended him four weeks. It has been suggested that his pulse

286 XIV. AMERICAN STATE TRIALS.

was good, but Dr. Spofford says it was hard; that he gave
him medicine; and that it had a good effect. Ergo, say the
prisoners' counsel, he was not crazy. I mention these things
to show it is all reconciliable. Now, gentlemen, I will unfold
to you the history and the cause of all this excitement.
There was no suspicion of Major Goodridge's integrity till he
unfortunately arrested Mr. Pearson, whom I suppose to be a
man of good character. Major Goodridge was informed from
the same source from which he derived his information of the
Kennistons, that the property was divided at Mr. Pearson's.
What could he do therefore, but arrest Mr. Pearson? He
did so, and the result was that Mr. Pearson was discharged
from the complaints, and dragged in triumph to his house,
amidst the shouts and the exultations of the rabble. He was
undoubtedly indignant, and expressed his rage in the harsh
language which you have heard. That he had a numerous
body of friends is apparent, their feelings are enlisted in the
cause, and I believe the whole infatuation, the whole delusion
may be traced to the circumstance of arresting Mr. Pearson.

If Goodridge stops, it is evidence of fraud; if he goes on,
it is evidence of fraud; every act of his life, every thing he
does, good, bad, or indifferent, is tortured into a suspicious
circumstance against him, and this zeal of Pearson and his
friends has thus produced a sort of witchcraft and delusion.

Gentlemen, at this, and at every other step of the cause,
I may repeat my remark, that I cannot conceive of any human
depravity equal to that which is imputed by this defense, to
Major Goodridge ; and my acquaintance with the bad part of
the community, has, by my official standing, for the last fif-
teen years, been pretty extensive.

Thus, gentlemen, you see, the only hope of the prisoners,
is to inculpate the principal witness on the part of the gov-
ernment ; if therefore you can rely upon other evidence, even
this hope will be groundless, and the whole delusion will be
dissipated, and the fact of the robbery completely established.
Now the first circumstance is that the prisoners were in New-
buryport that night, and give no account of themselves from

LEVI AND LAB AN KENNISTON. 287

7 to 10 o'clock that evening. An alibi, one would think,
might have been proved in such a populous place, if they had
actually been elsewhere. There was another person when they
went from Titcomb's by the name of McKinnister, who also
returned with them. Where is this McKinnister, why have
they not produced him? Is he gone to the place where the
wicked cease from troubling, (the State's Prison)? Has he
ho home? Does he dwell in dens, or in hollow trees? That
he is not here is certain, why he is not, is for the prisoners
to explain.

It is said he is in the United States ' service at Portsmouth.
Even if he is, they might probably have had him here, by an
application to the commanding officer.

The next morning they returned to Caldwell's, and went
down under the stable, into the dark; and why did they do
so? They chose darkness rather than light because their
deeds were evil.

Gentlemen, it cannot be expected that we should prove to
you that these identical men were the robbers, by any person
who was a witness to the transaction. Robbers do not per-
petrate their crimes in the market place or at noon-day. The
places they choose are solitary, and the hour, when the night
may veil them from the eyes of their fellow men.

Gentlemen, are you never to believe that a robbery has
taken place, unless the person is shot dead? Is a man, who
by good fortune escapes with his life, to be branded with
suspicion on that account ?

We will now, gentlemen, trace out the circumstances of the
search at the house of the Kennistons. Major Goodridge goes
to the house to search, accompanied by five or six respectable
men. This was all he could do. Had he gone alone, some
imputation might have rested on him. The more you scru-
tinize, the worse for the prisoners. Unless Leavitt is the most
perjured wretch in the universe, the evidence is incontestible,
that Goodridge has been robbed. He arrested the pris-
oners; he first went into the room where the bill was found,
before one other soul of the party; he is an honest man, and

288 XIV. AMERICAN STATE TRIALS.

an intelligent one — this is admitted on all sides. That Good-
ridge had not been there before, is established beyond all con-
tradiction. He opened the drawer, and found a ten dollar
bill of a Boston Bank, rolled up carefully; he examined it;
he thought it counterfeit, and threw it back again — every
person would have suspected it. Major Leavitt suspected it.
He further tells you that he went on in the search and never
mentioned to a single individual the circumstance of his find-
ing this bill. Some ' time afterwards Upton went to that
drawer and found a ten dollar bill, and observed that he had
found one. Major Leavitt then said, I saw the bill in that
drawer an hour ago, and it is counterfeit. Upton then said,
they have no right to have counterfeit money, and we had
better take it. When the party arrive at Major Coffin's the
bill is produced, and claimed by Goodridge as his, and he
knew it, gentlemen, by the writing on the back.

As to the gold in the pocket-book, Upton says, he came
down and went to the pantaloons, which were hanging up
by the bed; and discovered the pocket-book, and the gold in
it. And with respect to that which is found in the cellar,
Leavitt says, that on the cry that the hoard was found, he
went down, and Upton held up one piece of the gold, and
that he then felt under and found the other piece, which had
the wrapper. So that it seems, gentlemen, that Goodridge
does not find anything, it is Upton and Leavitt.

With respect to Taber, if it was not Taber who had the
conversation with him, some person must have imposed him-
self for Taber, upon Goodridge.

Gentlemen, look a moment to the whole defense set up by
the counsel for the prisoners. In this defense motives are
conjectured with a latitude which would best suit an oriental
tale; slight incongruities are made absolute inconsistencies;
actions of a common occurence are turned to mysteries'.
Statements are made with only plausible foundations, and in-
sinuations without any support are followed up by ingenuity
which moulds every thing as it wishes. The counsel for the
government can go no farther than fairly to try in the bal-

LEVI AND LABAN KENNISTON. 289

anee, the just weight of testimony to support this indictment ;
he can have no feelings as a man against the prisoners. He
is anxious, it is true, to discharge his duty as an officer of the
government; and that duty consists in spreading the case
before you with fulness, accuracy, and sincerity. I have dis-
torted no fact, strained no testimony, and yet, gentlemen,
is there not a clear unanswerable and unanswered case made
out to you? But of this you are the judges.

Lastly, gentlemen, consider Capt. Howard's testimony. If
Goodridge's pistol was not fired, he could not have given him-
self the shot wound in his hand, and consequently he must
have been robbed by some one who made the wound.

Gentlemen, weigh all these circumstances, compare them
together, and if the result of your investigations is a well
founded doubt of the guilt of the prisoners, or a conviction
of their innocence, I shall heartily rejoice in their acquittal;
but if no reasonable doubt of flheir guilt remains upon your
minds, it will be your duty to summon all your firmness, and
pronounce a verdict against them.

THE JUDGE'S CHARGE.

Judge Putnam then addressed the jury in a fair and can-
did charge containing a clear analysis of the evidence and a
just exposition of the law in the case.6

s We regret that it is not in our power to give it to the public.
Our minutes are indeed pretty full but we shall not hazard to pub-
lish an abstract of a performance in which nicety and accuracy
are requisites so essential as in the charge of a judge to a jury.
But there was an observation which fell from the judge which we
will venture to mention, for it was full of truth and beautifully il-
lustrative of the sentiment he wished to impress on the minds of
the jury. It was given when commenting on that part of the testi-
mony which stated "that Levi Kenniston appeared agitated and
sweat profusely though it was cold, looking guilty and frequently
changing countenance when urged by those around him to confess
what he knew of the robbery." "I am not (said his Honor) for
drawing conclusions against the prisoners from such appearances of
agitation and distress; for I believe the most minute and philo-
sophical observer of human nature would, at times, find it impos-
sible to discover the difference between the agonies of innocence

290 XIV. AMERICAN STATE TRIALS.

THE VERDICT.

The charge was closed about five o'clock p. m. and the
court adjourned until nine o'clock next morning. — At the
opening of the court, the jury returned a verdict of not
guilty. The jury had not separated for forty-nine hours,
since the commencement of the trial. The prisoners were then
discharged.

Subsequently Mr. Jackman was tried before Judge Putnam, but
the jury disagreed and on a second trial before Judge Jackson he
was acquitted. Mr. Pearson brought an action against Goodridge
for false arrest and was awarded three hundred dollars damages.

labouring under the suspicions of guilt, and the writhings and
trepidation of guilt itself, fearing detection. I believe in my heart,
gentlemen, that Benjamin exhibited as much emotion and distress
when the cup was taken from the mouth of the sack as a real
thief would have shown the moment his guilt was discovered."
Jackman's Report, ante p. 240.

THE TRIAL OF WILLIAM LLOYD GARRISON,
FOR LIBEL, BALTIMORE, MARYLAND, 1830.

THE NARRATIVE.

William Lloyd Garrison, known in American history as
one of the- great leaders of the crusade against Slavery in the
United States was in the year 1829, one of the owners of an
Abolitionist newspaper in Baltimore, called The Genius of
Universal Emancipation. In the issue of November 20, he
wrote an article which he signed with the initial "G" in
which he made a violent attack upon a New England Ship-
owner named Francis Todd because he had carried from
Baltimore to New Orleans in his ship The Francis a number
of slaves. He said that he had carried them — "a cargo of
slaves for the New Orleans market," "chained in a narrow
space, between decks," and that the men "who have the
wickedness to participate therein for the purpose of heaping
up wealth should be sentenced to solitary confinement for life ;
they are the enemies of their own species, highway robbers
and murderers and their final doom will be, unless they
speedily repent, to occupy the lowest depths of perdition."

He was indicted in the Baltimore Criminal court for libel.
He contended that it was no libel to charge a man with doing-
what he had a right to do, because under the laws of the
United States to carry slaves was a legal business. In this he
was correct, but his article charged two other things, viz, that
the slaves were being carried to be sold, and second that they
were carried in chains. The prosecution proved very clearly
that they were not being carried to the New Orleans market,
but for a humane master who had already purchased them
and that on the voyage they were neither in chains nor
harshly treated.

(291)

292 XIV. AMERICAN STATE TRIALS.

So there was nothing for the jury to do but to find the
defendant guilty, which they did. Mr. Garrison refused to
pay the fine which the Judge imposed and remained in jail
as a martyr to the cause until it was paid by a friend and
admirer.

THE TEIAL.1

In the Criminal Court, Baltimore, Maryland, February, 1830.
Hok. Nicholas Brice,2 Judge.

February 24.

The grand jury of the county had previously returned an
indictment against William Lloyd Garrison and Benjamin
Lundy charging them with having on November 20, 1829, in
the City of Baltimore published a libel on one Francis Todd.
The defendants were the proprietors of a newspaper pub-
lished in this city called The Genius of Universal Emancipa-
tion. The libel was an article written by Garrison and signed
with the initial "G."

The indictment alleged that this letter or article referred to one
Francis Todd among others engaged in the transportation of slaves
from the port of Baltimore to the port of New Orleans, being there-
fore to be regarded and considered as an enemy to his own species,
a highway robber and a murderer, and which communication then
and there contained the false, scandalous, and malicious matter and
libel following, that is to say: "The Ship Francis. This ship, as
I" (meaning the said person referred to by the said letter G.)
"mentioned in our last number, sailed a few weeks since from this
port," (meaning the port of Baltimore,) "with a cargo of slaves for
the New Orleans market. I" (still meaning the said person referred
to by the said letter G.) "do not repeat the fact because it is a rare
instance of domestic piracy, or because the case was attended with
extraordinary circumstances; for the horrible traffic is briskly car-
ried Oil, and the transportation was effected in the ordinary manner.
I" (still meaning the said person referred to by the said letter G.)
"merely wish to illustrate New England humanity and morality.
I" (again meaning the said person referred to by the said letter
G.) "am resolved to cover with thick infamy all" (meaning amongst

i Bibliography. "A brief sketch of the trial of William Lloyd
Garrison, for an alleged libel on Francis Todd, of Newburyport,
Mass. Boston: Printed by Garrison and Knapp, 1834."

2 See 4 Am. St. Tr. 2.

WILLIAM LLOYD GARRISON 293

others, the said Francis Todd) "who were concerned in this ne-
farious business." (Thereby meaning the transportation of slaves
from the Port of Baltimore to the Port of New Orleans.) "I" (again
meaning the said person referred to by the said letter G.) "have
stated that the ship Francis hails from my native place, Newbury-
port, (Massachusetts,) is commanded by a Yankee captain, and
owned by a townsman, named Francis Todd. Of captain Nicholas
Brown I" (still meaning the person referred to by the letter G.)
"should have expected better conduct. It is no worse to fit out
piratical cruisers, or to engage in the foreign slave trade, than to
pursue a similar trade along our own coasts; and the men who have
the wickedness" (meaning that the said Francis Todd, amongst
others, had the wickedness) "to participate therein, for the purpose
of heaping up wealth, should be sw sentenced to solitary confine-
ment for life; °®a they" (meaning the men who had the wickedness
to participate in the transportation of slaves along our own coast,
and amongst them including the said Francis Todd) "are the ene-
mies of their own species — highway robbers and murderers" —
(meaning that the said Francis Todd was to be regarded as a high-
way robber and murderer) — "and their final doom will be, unless
they speedily repent, to occupy the lowest depths of perdition" —
to the great scandal, damage and disgrace of the said Francis Todd,
to the evil example of all others in like manner offending, and
against the peace, government and dignity of the State.

The defendant Garrison was put on trial today and pleaded
not guilty.

Thomas Jennings,3 Jonathan Meredith and R. W. Gill,4' for
the State.

Charles Mitchell5 for the prisoner, Garrison.

The following jurors were selected and sworn: Daniel W.
Crocker, Samuel D. Walker, William H. Beatty, John Fran-
ciscus, George M'Dowell, George A. Vonspreckelson, Stewart
Brown, George A. Hughes, Andrew Crawford, Robert Hewitt,
James W. Collins, John Walsh.

Mr. Meredith read the indictment and was about to read
the whole article.

3 See 4 Am. St. Tr. 3.

4 See 4 Am. St. Tr. 3.

s Mitchell, Charles (1785-1831). Born Wethersfield, Conn.
Fourth son of Chief -Justice Stephen Mix Mitchell (Yale 1763) ; Grad.
Yale 1803. Studied law and settled in Baltimore to practice. Died
in Baltimore, see Stiles (H. R.), History of ancient Wethersfield,
Conn., vol. II, p. 507. Yale' College biogra. studies (1803 class),
Tillotson (E. S.), Wethersfield inscriptions.

294 XIV. AMERICAN STATE TRIALS.

Mr. Mitchell. We object to this. No one is compelled to
defend himself against charges not set forth in an indictment.
The jury might unconsciously derive their impressions from
passages other than those in the indictment. Suppose a man
is indicted for larceny and the evidence is insufficient, can
the State in order to show that he is bad enough to commit
a theft, prove that on the same night he committed a murder ?
The indictment here contains no libel upon Francis Todd.

The Court. The whole article is offered to show a ma-
licious intent in the defendant. We think it is admissible
for that purpose.

Mr. Meredith read the whole article, which was as follows :

THE SHIP FRANCIS.

This ship, as I mentioned in our last number, sailed a few weeks
since from this port with a cargo of slaves for the New Orleans
market. I do not repeat the fact because it is a rare instance of
domestic piracy, or because the case was attended with extraor-
dinary circumstances; for the horrible traffic is briskly carried on,
and the transportation was effected in the ordinary manner. I
merely wish to illustrate New England humanity and morality. I
am resolved to cover with thick infamy all who were concerned in
this nefarious business.

I have stated that the ship Francis hails from my native place,
Newburyport, (Massachusetts,) is commanded by a yankee cap-
tain, and owned by a townsman named FRANCIS TODD.

Of captain Nicholas Brown I should have expected better conduct.
It is no worse to fit out piratical cruisers, or to engage in the for-
eign slave trade, than to pursue a similar trade along our own
coasts; and the men who have the wickedness to participate therein,
for the purpose of heaping up wealth, should be &W sentenced to
solitary confinement fob life; "®a they are the enemies of their
own species — highway robbers and murderers; and their final doom
will be, unless they speedily repent, to occupy the lowest depths of
perdition. I know tbat our laws make a distinction in this matter.
I know that the man who is allowed to freight his vessel with slaves
at home, for a distant market, would be thought worthy of death
if he should take a similar freight on the coast of Africa; but I
know, too, that this distinction is absurd, and at war with the
common sense of mankind, and that God and good men regard it
with abhorrence.

I recollect that it was always a mystery in Newburyport, how Mr.
Todd contrived to make profitable voyages to New Orleans and
other places, when other merchants, with as fair an opportunity to

WILLIAM LLOYD GARRISON

295

make money, and sending at the same ports at the same time, in-
variably made fewer successful speculations. The mystery seems
to be unravelled. Any man can gather up riches, if he does not
care by what means they are obtained.

The Francis carried off seventy-five slaves, chained in a narrow
space between decks. Captain Brown originally intended to take
one hundred and fifty of these unfortunate creatures; but another
hard-hearted shipmaster underbid him in the price of passage for
the remaining moiety. Captain B., I believe, is a mason. Where
was his charity or brotherly kindness?

I respectfully request the editor of the Newburyport Herald to
copy this article, or publish a statement of the facts contained
herein — not for the purpose of giving information to Mr. Todd, for
I shall send him a copy of this number, but in order to enlighten
the public mind in that quarter. — g.

THE WITNESSES FOR THE STATE.

Henry Thompson. I have been
the agent here of Mr. Francis
Todd for many years. He re-
sides in Newburyport, Mass.;
know him to be an estimable
man. I contracted for the trans-
portation of the slaves, before
consulting Mr. Todd, but imme-
diately wrote to him, stating the
conditions on which the contract
was made. Mr. Todd, in reply,
said he should have preferred
another kind of freight; but as
freights were dull, times hard,
and money scarce, he was satis-
fied with the bargain. Articles
necessary for the comfort and
convenience of the slaves were
put on board the vessel. The
slaves were purchased by a
planter of New-Orleans, named
Milligan, a humane master;
Captain Brown was a humane
man, and I had no doubt the
slaves were kindly treated on
the passage.

James Smith. Was the pilot of
the Francis on the voyage in
question: the slaves were re-
ceived on board at Annapolis —
eighty-eight in number — consist-

ing of men, women, and chil-
dren; they were not confined,
but suffered to peregrinate
about the ship, as they pleased.
They were provided with shoes
and clothing, good food; Captain
Brown was the best of ship-
masters.

Captain Brown. I commanded
the Francis on this voyage. It
was the first time I have carried
a slave cargo. There were no
chains put on them: Mr. Milli-
gan was present when they em-
barked and told me that they
were not to be sold by him at
New Orleans but that he in-
tended them all for his own es-
tate. Relying on his honor and
integrity, I considered my act —
for I had not put them in bond-
age, they were already slaves —
in relieving their condition in
some degree, by taking them to
a climate much more congenial
to their nature, as one of the
best of my life.

E. K. Beaver. Am a printer, a
partner of Mr. Lucas; we
printed under a contract with
Lundy and Garrison, the Genius

296 XIV. AMERICAN STATE TRIALS.

of Universal Emancipation: can I delivered it at their office:

not swear that we printed this could not say that Mr. Garrison

identical number but think we saw it; the editors, Lundy and

did. Garrison, generally corrected

James Lucas. Our firm printed the proofsheets.
this issue of Garrison's paper;

FOR THE DEFENSE.

It was admitted that Francis different ages, sexes and con-

Todd was the owner of the ditions.

Francis and a letter from the D. McCullough. Am an in-

collector of Annapolis was read spector at the custom house in

by consent in which he stated Baltimore; the clearance papers

that the Francis sailed from of the Francis, which I produce,

Baltimore to a convenient spot show that she cleared early in

where she took on board the October last from the port of

slaves and then obtained a new Baltimore direct to New Orleans

clearance for New Orleans from with an assorted cargo but no

the port of Annapolis. Her man- slaves,
if est enumerated 88 slaves of

Mr. Mitchell argued to the jury that the law of libel was a
drain through which had circulated every thing that was
putrid, vile, and unseemly. It was the last and most suc-
cessful engine of tyranny; and had done more to perpetuate
public abuses, and to check the march of reform, than any
other agent. He showed in what light Congress beheld the
slave-trade — that, by one of the laws of that body, it was
reprobated as piracy upon mankind, and the detection of an
American citizen engaged in it on the coast of Africa, would
send him to the gallows — that, by another act of Congress, all
transportation of slaves from an American port to the West
India islands, or to any foreign port, was prohibited under the
penalty of confiscation. True, the domestic trade was tol-
erated ; simply because it was beyond the legitimate authority
of Congress, and came exclusively under the cognizance of
individual states ; yet that wise and venerable body, in stamp-
ing the seal of infamy upon the former traffic, fixed it as
indelibly upon the latter. Distance did not change the prin-
ciple. It was absurd, it was preposterous, it was wicked to
contend that both were not equally base, abhorrent and dis-
graceful. He trusted in God that the time was not far distant,

WILLIAM LLOYD GARRISON 297

when the Legislature would pass a law to that effect : it would
be the brightest in the statute books of Maryland. As to the
indictment, it was fatally defective in its construction, and
contained no libel upon Francis Todd. The matter embraced
therein, did not implicate Mr. Todd in the transportation of
the slaves, nor charge him with being privy or consenting
thereto. It merely stated the fact, that he was the owner of
the vessel — nothing more; and could this, by any ingenuity,
be tortured into a libel ? Yet it had been proved that Mr.
Todd participated in the business, though he felt some severe
twinges of conscience for so doing. Evidence had entirely
failed to convict the defendant of having printed or pub-
lished, or of having any agency in printing or publishing, or
of having written or caused to be written, the obnoxious
article. The postulate assumed by the writer " G. ' ' — that the
domestic slave trade is as heinous as the foreign, that it is a
war upon the human species, that it is murderous and pi-
ratical— was certainly not punishable by law. A multitude
of good men entertained a similar opinion; and, unless our
country groaned under a thraldom as despotic as that of the
Africans, they had a right at any time, publicly or privately,
to declare that opinion. It was a general view of the traffic,
expressed in general terms. Every Sabbath, the clergy de-
nounced, in no measured language, popular and legalized
vices — could they also be indicted? He reverted to the ex-
traordinary license which had been given to the prosecutor,
to read other parts of the publication not contained in the
indictment, in order to obtain a verdict of guilty. It was
neither jure Jiumano nor jure divino. It was taking the de-
fendant by surprise, by giving him no notice to prepare his
evidence of the truth of those parts omitted. He passed some
flattering encomiums upon the editors of the Genius, and ex-
pressed a hope that they would be sustained, not only by the
Jury but by their country.

Mr. Gill maintained the legality of the traffic, the rights of
slaveholders, the contentment and good condition of the
slaves, the fanaticism and virulence of the editors, and the

298 XTV: AMERICAN STATE TRIALS.

necessity of putting a wholesome restraint upon the periodical
under consideration. The Jury were to read the whole of the
piece and to judge of the malicious intent of the writer.

Judge Brice said that the Jury would acquit or convict
upon the matter contained in the indictment; at the same
time, they were authorised to derive auxiliary aid, in making
up their verdict, from the remainder of the article.

THE VERDICT AND SENTENCE.

The Jury retired, and, in about fifteen minutes, returned
with a verdict of Guilty.

Motions in arrest of judgment, and for a new trial, were power-
fully argued by the counsel for the defendant, but overruled. He
was sentenced to a $50 fine, and costs of the prosecution.

In default of payment, the defendant was committed to the Balti-
more Jail where after an imprisonment of seven weeks, an Aboli-
tionist named Arthur Tappan paid his fine and he was released.
He returned to his home in Massachusetts. Subsequently in the Bal-
timore Court a civil action for damages for the same libel was
brought against him by Mr. Todd. Mr. Garrison did not come back
to defend it and the jury returned a verdict for one thousand dol-
lars against him.

THE TRIAL OF THE PROCEEDINGS AGAINST

RUGGLES HUBBARD AND JAMES L. BELL,

SHERRIFF AND JAILOR OF NEW YORK CITY,

FOR PREVENTING AN ATTORNEY PROM

ENTERING THE JAIL TO SEE A

CLIENT: NEW YORK CITY, 1815.

THE NARRATIVE.

William W. MeClelan, a lawyer, received a letter from one
Zenos M. Bradley, a prisoner in the jail of the City of New
York, asking him to act for him as his attorney. But when
the lawyer went to the jail the jailer refused him permission
to enter to see his client. The sheriff did the same thing.
The lawyer then applied to the City Judge and asked for an
order on these officers to compel them to allow him to visit
his client in the jail. To resist this order two New York at-
torneys appeared in court and filed the affidavits of the
sheriff, the jailer and one of his deputies, in which they al-
leged that they believed that there was a plot among the
prisoners in the jail to make their escape and that Mr.
MeClelan was privy to it; that Bradley was not a bona fide
client of his; that to admit this attorney to the jail would
be dangerous to the safety of the prisoners and the good
order of the jail. And their lawyers argued that the court
had no power to render such a judgment as was asked for.

But the Court answered that every court of record has
authority to control its officers ; that the right to employ and
consult with counsel is one guaranteed to every man by the
constitution and that the affidavits of the sheriff and jailers
did not sustain the fears of escape or of fraud on the part of
the attorney which they set up. It was therefore ordered that
Mr. MeClelan should be allowed at all seasonable hours to go
in and out of the jail to consult and advise with his clients

C299)

300 XIV. AMERICAN STATE TRIALS.

and that neither the sheriff, the jailer, his deputies nor any
other person should deny or obstruct him in this right.

THE TRIAL.1

In the Court of General Session, New York, July, 1815.
Hon. Richard Riker,2 Recorder.

July 11.

William W. McClelan, a duly authorized and licensed at-
torney at law asks for an order compelling the Sheriff of the
city and the jailer of the city jail and their aids and deputies
to permit him to enter said jail for the purpose of seeing and
consulting with a client of his, Zenos Meigs Bradley, at pres-
ent confined under legal process in said city jail.

William Sampson3 for the applicant and the prisoner ; John
King* for the jailer ; P. W. Ratcliff for the sheriff.

i New York Criminal Recorder, See 1 Am. St. Tr. 61.

2 Rikee, Richard (1773-1842). Born Newtown, N. Y. Admitted to
bar, 1791: Dist. Atty, New York City, 1801-1813. Recorder, 1815-
1838 (except two short intermissions). Resigned this office on ac-
count of ill health and retired to his country seat on the East River
near 75th St., where he died. In 1802 he acted as a second for
De Will Clinton in a duel with Col. John Swartout and in 1803 he
fought a duel with his brother Robert Swartout, being wounded in
the leg. For this, though contrary to the law, he was not arrested,
Alexander Hamilton interposing to prevent a prosecution. He was
the founder of a law business which was carried on by himself and
family for nearly a century. His two brothers, who were his part-
ners, were Samuel Riker, born in 1780, educated at Columbia Col-
lege, and died in 1811, and John L. Riker, born in 1787; received
his education at Erasmus Hall, L. I. In 1846 he was a member of
the State Constitutional Convention. He continued the practice of
his profession for more than fifty years, and died in 1861.

In the second generation, by which the business inaugurated by
the Recorder was continued, were his two sons, D. Phoenix Riker
and John H. Riker, and two sons of his brother, John L. Riker —
viz., Henry L. Riker and Samuel Riker. D. Phoenix Riker practiced
his profession for a few years only, and died shortly after the war.
Henry L. Riker died in 1861, after twenty years at the Bar. John
H. Riker was educated at Columbia College, and labored diligently
at his profession for more than forty years. He retired in 1884,
and died in 1894.

Samuel Rikee (son of John) born in 1832 was admitted to the bar

RUGGLES HUBBARD AND JAMES L. BELL %\

THE EVIDENCE. :,

William W. McClelan testified one of his clients, retaining him

that he was an attorney duly to attend to the matter of his

admitted to practice in this defense; that it was necessary

court, that he had received a let- for such purpose that he have

ter which he produced from one an opportunity to consult per-

Zenos Meigs Bradley, who was sonally with his client. For this

in 1853 and retired in 1893, the last survivor of the two generations
of lawyers of the same name. Mr. Clinton (H. L.) Extraordinary
Cases (N. Y. 1896) says: Probably no one upon the Bench in his
time possessed a more marked individuality of character than
Richard Riker. His exhibitions of keen wit and genial humor, if
collected, would fill volumes. One or two illustrations will suffice
to show the turn of his mind in these respects. On one occasion
a man was convicted before him of assault and battery. It ap-
peared that on the day previous to the assault the party assaulted
had given the defendant great provocation — in fact, had grossly
insulted him. Instead of instantly resenting the insult and giving
the party a sound thrashing, the defendant withdrew and returned
home; but the next day he went to the abode of the prosecutor and
knocked him down. In pronouncing sentence the Recorder gave the
defendant a lecture on the moral heinousness of his long and in-
excusable delay in inflicting personal chastisement on the prose-
cutor, and, as a punishment for not knocking him down on the
instant, he imposed upon him a fine which was small in amount.
On another occasion, in sentencing a woman who was pertinaciously
loquacious, he said: "You must suffer some. I must send you to
prison. Your fare will be plain; perhaps, with fortitude, you can
put up with that. But that which will cause you untold suffering —
perhaps greater than you can bear — is that you will be condemned
to — silence." Mr. Riker's integrity and great experience made him
an excellent Judge. He possessed courtly manners of the old school,
a handsome person, and a kindness of heart almost excessive.
It has been said of the Recorder that "perhaps by no individual,
at any time or in any country, have the principles of criminal law
been more firmly yet temperately administered, and the rigid rules
of law more happily blended with the benign precepts of moral
justice and equity. His knowledge of criminal law, from long and
constant study and observation, was nearly universal, and his ex-
perience made him acquainted with all the cunning and devices of
the human heart."

See 1 Amer. St. Tr. 361, 3 Id. 303, 604; 4 Id. 457, 853; 6 Id. 96;
8 Id. 875; 13 Id. 189.

s See 1 Am. St. Tr. 63.

4 King, John (1775-1838). Member U. S. House of Representa-
tives (N. Y.) 1831.-1833.

302

XIV. AMERICAN STATE TRIALS.

.purpose he had on several oc-
casions called at the jail but
that in each instance although
he had made his intention
known to the jailer the latter
on instructions, as he alleged,
from the sheriff had refused to
allow him to enter the building
or to see his client.

Ruggles Hubbard filed an af-
fidavit stating that he is sheriff
of the city of New York, that he
was informed by the jailer and
one of his deputies that it was
unsafe and would result in dis-
turbances among the prisoners
generally, to permit this attor-
ney or another that he named to
go into the jail, and that the
public interest was the reason
why acting on the jailer's state-
ment he had endorsed the jail-
er's position.

James L. Bell makes affidavit

that he is the keeper of the city
jail, that both he and his assist-
ant had decided that it was nec-
essary for the government and
good order of the jail that the
petitioner and a certain other
attorney should not be allowed
to enter the jail; that if these
men were allowed to enter they
would stir up dissatisfaction
among the prisoners; that he
fears that their admission would
result in prisoners making their
escape; that there had been dis-
covered among the prisoners an
attempt to escape and he be-
lieves the petitioner is privy to
this; that he does not think that
the prisoner is a bona fide client
of the petitioner, but it is
merely a trick to be admitted to
the jail.

James Fleet, a deputy jailer,
filed a similar affidavit.

Mr. King and Mr. Ratcliff argued that the admission of a
counsel within the jail to confer with his client, who may be
confined therein, is a matter of indulgence, and not of right ;
and consequently, that the jailer may, in his discretion, give
or refuse admission. The officers are liable for all escapes, no
matter from what cause, unless it be by means of a public
enemy. It might expose them to utter ruin to compel them
to open daily the doors of the jail to counsel. If this be de-
cided to be the law, no prudent man will take upon himself
the execution of the office of sheriff or jailer. It will be im-
possible to find sureties — escapes will be inevitable: and a
train of evils will follow, the extent of which no man can
foresee; all of which will be averted, if it be left to the dis-
cretion of the jailer to grant, or refuse admission as he shall
think proper. This Court has not the power to interfere in
the summary manner proposed. If they have infringed either
the right of the counsel, or the privilege of the client, that
redress can be afforded only by a suit in the ordinary course

BUGGLES HUBBARD AND JAMES L. BELL 303

of law. And, lastly, the facts disclosed in the deposition of
the sheriff, and the jailer, furnish sufficient reasons against
this Court interfering, even if the right to interfere existed.

Mr. Sampson. It is the right of every man to have the
benefit of counsel — that is a privilege secured even to crim-
inals, by the express provisions of our Constitution ; and, con-
sequently, as a person confined in prison cannot go to his
counsel, it follows by the most obvious dictates of common
sense, that his counsel must have, of right, admission to him.
Uniform usage and practice show what the law is; no case
or precedent can be found in the books of a jailer refusing to
admit the counsel of a prisoner; to allow of such a thing,
would be to subject one of the most invaluable rights of an
American citizen to the caprice of the keeper of a public
prison. It is an authority which the law has given to no mag-
istrate whatsoever, and is an unnecessary delegation of power
which in the hands of a jailer might be exercised to the worst
and the basest of purposes. Such a power has in itself all
the marks and character of despotism. It may be exercised
in secret. It may be indulged to gratify private revenge. It
is irresponsible, without check or control ; the danger of escape
is idle and illusory ; it cannot be believed that a counsel going
into the jail at seasonable hours of the day to see a client,
would jeopardize its safety, or diminish its security.
It ought not to be believed, on light grounds, that any counsel
would act so unworthy a part as to aid the escape of a pris-
oner. That accusation ought to be supported by facts, and
not by surmises. This Court has a right to see that its pro-
cess be not abused; and, therefore, it ought to interfere to
restrain the oppression complained of.

Hiker, Recorder. This Court is called on to decide a ques-
tion of no ordinary magnitude and importance. In form it is
a contest between a member of the bar and two public officers.
In substance it involves the rights of suitors and in its bear-
ing implicated the interests of all men whom crime, misfor-
tune or oppression may consign to the walls of a prison.

I have listened attentively to the arguments on both sides.

304 XIV. AMERICAN STATE TRIALS.

I have given to the subject all the reflection that its impor-
tance demanded. I hope and believe that I have not been
unmindful of the duties, the power, and the risks of the sheriff
and jailer on the one hand nor of the privilege of counsel or
the right of the prisoner on the other; nor has it escaped me
that the decision I make this day may be drawn into prece-
dent hereafter. That the rule which is established in refer-
ence to Mr. McClelan will be the law with regard to every
member of the bar. The limitation also, which I now set to
the rights of Zenos Meigs Bradley will be set to the rights of
every man whose faults or misfortunes may subject him to the
process of this court. I have considered too, that the same
power which the jailer may exercise over a debtor may be
exercised over a man accused of a crime. If counsel can be
excluded in the one case they may on the other. Acting under
the influence of all these serious impressions, the court will
now proceed to deliver its judgment upon the three follow-
ing questions :

1. Has a counsel a right by law at seasonable hours of the
day to go within the walls of a jail for the purpose of advising
with his client?

2. If such right exists can it be enforced by summary
means or is the party injured driven to his action?

3. If it can be enforced by attachment, do the depositions
which have been produced on the part of the sheriff and jailer
warrant the Court in refusing to interpose?

It is here proper to premise, that when we speak of the
right or privilege of counsel, we mean the right and privilege
of the client. It is the sacred right of every man to be heard
in his defense, to keep his own secrets, to confront his ac-
cusers, to impeach the testimony of those who come to destroy
him. But as all men are not equally competent, the law al-
lows of advocates. These advocates, whilst representing their
clients, possess the privileges of their clients. But the privi-
lege of the lawyer is, in fact, the privilege of the client — and
hence it has been solemnly adjudged, that if a member of
the bar should be so base as to reveal the secrets of his client,

BUGGLES HUBBARD AND JAMES L. BELL 305

the Court would not permit him to do it. With this explana-
tion, that what is usually termed, and what I may hereafter
call the privilege of a counsel, is in strictness the privilege of
the suitors. The keeping of the jail being confided to the
Jailer, an opinion prevails that he may keep it as a man keeps
his own house; that he is absolute there, and may exclude
whom he pleases : in fact, that the jail, for the time being, is
his. This is a gross error, and has led to many of the false
conclusions that have been drawn. All the books show that a
jail is of such public consequence, that it cannot be erected by
any authority except the legislature, and that it belongs to the
State. Lord Coke says, "Jails are of such universal concern
to the public, that none can be erected by any less authority
than an act of parliament. ' '

The sheriff or his jailer is merely the keeper. The jail
belongs to the State. Hence in the writ of Habeas Corpus
the sheriff, or other keeper of prisoners, are commanded "to
have the body of A. B. detained under your custody." The
whole course of judicial proceedings show the same thing.
Nor is it true, that the jailer is absolute, and has a right to
exclude whom he pleases. At common law, it is doubtful
whether the jailer is bound to provide his prisoner with food.
The better opinion is that he is not. Plow. 68. 2 Eolls.
Abr. 32.

The statute of our State, declaring the duties of sheriff,
says expressly, "that every person who shall be committed to
the custody of the sheriff, or other officer, in execution of
any debt or damages, shall safely be kept in prison, in
close and secure custody without bail, living at his or her
own costs. 1. vol. Rev. Laws, p. 425, § 19." Hence the
legislature has provided in the same act, §16, Id., "that every
sheriff, or other officer, or person, having the custody of any
prisoner, shall permit him, at his own will and pleasure, to
send for and have any beer, ale, victuals, and other neces-
sary food, where and from whom any such prisoner pleases. ' '

By the act relative to jails, it is also provided that the
Mayor of this City may appoint one or more physicians, who

306 XIV. AMERICAN STATE TRIALS.

may grant permits in writing to any person in jail, to use
spirituous liquors if his health requires it. 1 Rev. Laws, p.
433, § 34. Now it is clear, beyond all doubt, that the friend
of a prisoner, confined in jail, might at the common law, and
may under our statute, enter the jail, at seasonable hours of
the day, to bring him food. A physician who is appointed
for that purpose by the Mayor, may visit a sick prisoner, and
the physician's permit in writing, will, I conceive, authorize a
person to take in so much spirituous liquor as the physician
thinks his patient may require. No doubt the jailer or turn-
key has a right to see that this privilege be not abused.

Independent of these statutory provisions, which I con-
sider as merely enforcing the humane principles of the com-
mon law, there are other persons who have a right to go
within the walls of the jail. It is the ancient law of the land,
and has never been disputed, that the coroner is to inquire
into the death of all persons whomsoever, who die in prison,
to the end that the public may be satisfied whether such
persons came to their end by the common course of nature,
or by some unlawful violence, or unreasonable hardships put
on them by those under whose power they were confined. 3
Inst. 52—91: 3 Bac. 345. Sir Michael Poster, after stating
the protection the law gives to jailers, and especially, that if
a prisoner resist his authority, he may freely use force, and
if the prisoner be killed, it is justifiable homicide. Whereas,
if the jailer, or any one coming in his aid, be killed, it is mur-
der in all persons joining in such resistance; goes on to say,
that,

"In regard to the great power these officers have, and while it is
exercised with moderation, ought to have, over their prisoners, the
law watch eth with a jealous eye over their conduct: and, there-
fore, if a prisoner under their care dieth, whether by disease, or
accident, the coroner, upon notice of such death, which notice the
jailer is obliged to give in due time, ought to resort to the jail,
and there, upon view of the body, make inquisition into the cause
of the death; and if the death was owing to cruel and oppressive
usage, on the part of the jailer, or any officer of his; or, to speak
•in the language of the law, to duress of imprisonment, it will be
deemed wilful murder in the person guilty of such duress."
Foster's Crown Law, p. 320, §25.

RUGGLES HUBBARD AND JAMES L. BELL 307

The instances of oppression, adds this great lawyer and
friend to humanity, and to civil liberty, which may fall within
the rule of duress of imprisonment, are as various as a heart
cruelly bent upon mischief can invent. Two cases he men-
' tions, which had come in judgment. In one, a prisoner not
having had the small-pox, was confined in a room against his
will, with a person who had it: the jailer knowing the fact.
He caught it and died. This was held to be murder. An-
other prisoner was strictly confined in a low, damp, and un-
wholesome room, and contracted thereby an ill habit of body
which brought on a distemper of which he died. This, like-
wise, was very rightly holden to be murder in the party guilty
of this duress. These, says he, were deliberate acts of cruelty,
and enormous violations of the trusts the law reposes in its
ministers of justice.

Having shown, by authority which cannot be questioned,
that where a prisoner dies in jail, it is the duty of the
coroner to ascertain whether there has been, on the part of
the jailer, duress of imprisonment; and for that purpose, the
law says "he shall resort to the jail, and there, upon view,
make inquisition." It follows, as a necessary consequence,
that he has a legal right to enter the jail, and, moreover, to
convene a jury in the jail, and there make inquisition. The
danger of escape from such a proceeding, must be much
greater than can arise from a counsel entering the walls of
a prison. But public policy remains to be examined, whether
as cogent reasons exist for the admission of counsel as for the
admission of the coroner and his inquest.

The principle that guarantees to every man a right to
defend himself by counsel, depends upon no speculative rea-
soning, or artificial theories. The necessity of it at once con-
vinces the judgment, and its humanity and equity control
the heart.

Its importance has been universally felt, and universally
admitted. It is a right inseparably connected with all free
governments, and cannot be impaired without impairing the
safety of the citizen. The 34th Article of the Constitution

308 XIV. AMERICAN STATE TRIALS.

of our State, lias therefore provided, "That in every trial on
impeachment, or indictment for crimes, or misdemeanours,
the party impeached, or indicted, shall be allowed counsel
as in civil actions." Upon the adoption of the Constitution
of the United States, the State of New York put forth its
influence, in vindication of the same principle. The Conven-
tion declared "That in all criminal prosecutions the accused
ought to be informed of the cause and nature of his accusa-
tion. To be confronted with his accusers and the witnesses
against him. To have the means of producing his witnesses,
and the assistance of counsel for his defense:" and they
declare that "the right, aforesaid, cannot be abridged or
violated. Done in Poughkeepsie, 26th of July, 1788." The
States of Virginia and North Carolina, by their conventions,
maintained the same sentiment, and shortly afterwards the
principle was adopted by the whole Union, and now forms a
part of the Constitution of the United States.

Authority, so high and imposing, superadded to the natural
justice of the claim, would seem to preclude all further in-
quiry. It cannot be supposed, that a right which the Ameri-
can people have in so deliberate a manner ingrafted in the
Constitution, was intended to be partial, or restricted in its
operations. They could not mean it for one class of citizens,
and not for another. They could not intend that he who is
at liberty, and wanted it least, should have it, whilst he who
is confined in prison, and wants it most, should be deprived
of it. "When a man is separated from his family and his
friends ; when his fortune, his fame, or his life is at stake ;
when he is shut out from the rest of the world — to deprive
him of counsel is cruel, arbitrary, and unjust. And I have
no hesitation in saying, that if an uncontrolled power of that
kind existed in any jailer, it could speedily introduce a
practical despotism.

The Supreme Court of this State has expressed its opinion
in the case of Mr. Stannard, the attorney of John M 'Curdy.

"It is ordered, that the said attorney be at all times hereafter,
at seasonable hours of the day, admitted to go in and out of the

RUGGLES HUBBARD AND JAMES L. BELL 309

debtors' jail of the City and County of New York, to consult and
advise the said John M'Curdy in relation to the defense of his suit."

This Court cannot suppose that the Supreme Court would
have made such an order, if it had not by law possessed the
power to enforce it.

My opinion, therefore, is that a counsel has a right by law,
at seasonable hours of the day, to go within the walls of a
jail for the purpose of advising with his client.

2. If such right exists, can it be enforced by summary
means, or is the party injured driven to his action?

There is no rule of law better established than that every
Court of Record has the power, by summary process, to
control its own officers, and to see that its process be not
abused. Hence we find it laid down by Hawkins, in his
pleas of the crown, 3 v. 275, § 3. Tit. Attach :

"To be every day's practice to grant attachments against a sheriff
or bailiff, &c. for oppressive practice in the execution of a writ: as
for using needless force, violence and terror in making an arrest,
or by breaking open doors where, by law, it is not justifiable, or
treating the persons arrested basely and inhumanly." 11 Hen.
6. 42, 43.

So it has been adjudged a contempt of Court in an attorney
to use reproachful words on delivering a declaration in eject-
ment. 3 Hawk. 278, §12; note Stra. 567. Again in §12, that
learned writer says :

"It seems clear, from the general reasons of the law which gives
all Courts of Record a kind of discretionary power in the govern-
ment of their own officers, that every such Court may proceed by
attachment for all kinds of oppression, or injustice done by them
in tbe execution of their offices, or by colour of them."

Is the jailer an officer of the Court? The answer is plain
— he holds Bradley by the authority of this Court, and by
that alone. Take that from him, and he becomes a trespasser.
If, then, it be the duty of a Court to prevent all abuses of its
process, the jailer must fall within its control. It would be
contrary to the wisdom of the law to provide for the punish-
ment of abuses in making the arrest, and leave, unprovided

310 XIV. AMERICAN STATE TRIALS.

for, those abuses which take place in continuing the arrest.
When the person of a man is shut up in prison, he requires
the protecting arm of the law. He is entitled to it. There
is no doubt about it. There are a series of decisions upon the
point, and Hawkins, who has collected them in his 31st §,
says ''it is clear that jailers are punishable by attachment,
as all other officers are, by the Courts to which they more
immediately belong, for any gross misbehaviour in their of-
fices, or contempt of the rules of such Courts.

"We find that this prompt means of enforcing the authority
of our Courts, applies not only to sheriffs and jailers, but to
jurors, attorneys, counsel, and all the ministers of justice.
Without this authority, abuses would go unredressed, and
the law would fall into contempt. Its existence is essential
to the very ends of justice. It is said, the party may have
redress by a suit — bring that suggestion to the test, and see
whether it be true. How is he to get access to his counsel?
How is he to make his complaint known? The jailer will
admit only whom he pleases. Suppose that difficulty over-
come ; all who know the course of a suit, know that months, if
not years, must elapse before it can be tried : in that time the
fortune of the prisoner is swept away, and utter ruin over-
takes him. Apply the argument to a criminal case. The
keeper of the prison refuses admittance to counsel. The only
remedy is by a suit. The attorney-general will not delay.
Public justice moves on, and the unfortunate prisoner falls,
deprived of the benefit of counsel. But he may have redress
by a suit ! Redress by a suit ? when his fame, his liberty, or
his life, is gone ! To tell him so, is to insult his feelings, and
mock his judgment. It is to impeach the wisdom of the law,
and to bring into contempt the constitution of our country.
I feel persuaded that no good man would wish that the great
right of having counsel should hang on such a tenure. The
opinion of the Court, therefore, is that a counsel has a right,
by law, at seasonable hours of the day, to go within the walls
of a jail, for the purpose of advising with his client, and that
the exercise of the right may be enforced by attachment.

RUGGLES HUBBARD AND JAMES L. BELL 3 ] ]

3. The only remaining question is, whether the depositions
which have been produced on the part of the sheriff and jailer,
warrant the Court in refusing to interfere.

It is, no doubt, in the discretion of the Court to interpose
or not. But this discretion is a legal discretion, and to be
used according to the due course of law. In the language of
Lord Mansfield —

"Discretion, when applied to a Court of Justice, means sound dis-
cretion, guided by law. It must be governed by rule, not by hu-
mour: it must not be arbitrary, vague, and fanciful, but legal and
regular." 4 Burr, 2539.

It must, according to Lord Coke, be bounded with the rules
of reason, law, and justice. 5 Coke, 100 : 10 Coke, 140.

I take it to be an universal principle of the law, admitting
of no exception whatsoever, that a man cannot be deprived
of a known right without a specific accusation. Even where
mere surety of the peace, or of good behavior, is demanded,
the party requiring it must not only state his fears, but as-
sign the cause upon which those fears are grounded. The
rule is laid down with great precision by Hawkins and Sir
Wm. Blackstone — It is this,

"That whenever a person has just cause to fear that another will
burn his house, or do him a corporal hurt; as by killing, or beat-
ing him; or that he will procure others to do him such mischief,
he may demand surety of the peace against such person; and every
justice of peace is bound to grant it upon the parties' giving him
satisfaction upon oath, that he is actually under such fear, and
that he had just cause to be so, by reason of the other's having
threatened to beat him, or lain in wait for that purpose; and that he
does not require it out of malice, or for vexation."

In the depositions against Mr. M'Clelan, that very mate-
rial ingredient is wanting. No cause, whatsoever, is assigned
to the Court for the fears which the officers entertain. With-
out the cause being specified, how can the Court judge
whether it be a sufficient, or reasonable cause? To deprive
a man of his right, or even to bind him to his good behavior
upon such a vague charge, would be introducing a novelty

312 XIV. AMERICAN STATE TRIALS.

into the law, unwarranted by any precedent, and "novelties
(said Lord Coke) without warrant of precedents, are not
to be allowed." By a recurrence to the deposition of the
present sheriff, it will be seen that he knows nothing of his
own knowledge, and relies wholly upon the information de-
rived from Mr. Fleet and Mr. Bell. He does not even say
that this information was given upon oath. It is true he
states that he believed the information; that he is actuated
solely and exclusively by considerations of public duty: and
that he fully believes, that if Mr. M 'Clelan be freely admitted
within the locks of the jail, dissatisfaction and disturbances
will be created amongst the prisoners; the good order and
proper government of the prison endangered; and his se-
curity, in respect to the safe keeping of the prison, put at
hazard : in which belief he is confirmed by disclosures recently
made, and given in evidence on the trial of an indictment in
the Court of Sessions against some other attorney; but none
of those circumstances are set forth, so as to enable the
Court to judge of their sufficiency.

Mr. Fleet's deposition is still more loose; he says he came
to a conclusion to refuse admittance to Mr. M 'Clelan and one
other attorney; he says he formed his determination upon
information which he then, and still believes to be true: but
he does not state whom he derived such information from,
whether it was given upon oath or not, nor the nature of the
information.

We now proceed to the deposition of Mr. Bell. He states,
that he has kept the jail upwards of two years; that in con-
sequence of the occurrences which took place, and of informa-
tion received by him and Mr. Fleet, they considered it neces-
sary, for the good order and government of the jail, and the
safe keeping of the prisoners, to refuse Mr. M 'Clelan and one
other attorney of this Court (without naming him) admit-
tance within the jail. He neither states what the occurrences
were, nor the nature of the information which led to this
decision. He neither gives the name of his informant, nor
whether the information was on oath. He says that the

RUGGLES HUBBARD AND JAMES L. BELL 3 1 3

propriety and necessity of such resolution has, in repeated
instances, since the same was formed, and in various ways,
been manifested and confirmed. But he neither gives any of
the instances; nor of all the various ways, does he specify
one. He says, indeed, that he believes that if the regulation
agreed upon by him and Mr. Fleet had not been enforced,
there would have been great danger of attempts to liberate the
prisoners, or to aid them, or some of them, in effecting their
escape. But not the name of a single prisoner is given, nor
a single fact to justify the Court to impute guilt to Mr.
M'Clelan. He says, that in the belief which he entertains, he
has, from time to time, been additionally confirmed, not only
by a train of circumstances which have come to his knowledge,
or been communicated to him by others, but by the testimony
of witnesses recently given on a trial of indictment against
another person, by which it appeared, that a design had been
formed, and arrangements made, for attempting to liberate
the prisoners, and to which design M'Clelan was privy, if
not a party thereto. Here again he states no one circumstance
upon which he relies, nor any fact which implicates Mr.
M'Clelan. He swears, indeed, that he is satisfied that Brad-
ley knew that Mr. M'Clelan was not admitted into the jail,
and that the employment of Mr. M'Clelan is not bona fide,
but merely with an intent to get admittance. But he assigns
no reason for this belief, nor any cause why Bradley should
not choose his own counsel. In fact, it cannot be disputed,
that a man has a legal right to confide his interests to any
lawyer he pleases. He will select for himself the counsel, in
whose activity, diligence, or talents, he has the most confi-
dence ; and it can never be in the power of a jailer to control
his choice.

If Mr. M'Clelan and any one prisoner, or any other person,
have conspired together to effect an escape, it is a high mis-
demeanor; and upon conviction, the punishment would be
very penal. He would be liable to fine, imprisonment, and
removal from the office of an attorney. In case of an escape,
he would be subject to an action at the suit of the sheriff,

314 XIV. AMERICAN STATE TRIALS.

and to all the consequences I have stated. Every person con-
cerned in any plan to effect an escape, is subject to be indicted
and punished. If an attempt be made by force to break the
jail, the sheriff can command the whole power of the country
to put down the attempt. The walls and bars of the prison
would seem to defy any such thing. The jail is in the centre
of the city. In the day-time there are a thousand eyes upon
it. In the night it is strongly secured, and under the guard
of the watch.

If any proof can be brought before the Court, that Mr.
M'Clelan meditates a project for the escape of any prisoner
in jail — bring the facts before the Court, and if he be guilty,
he shall be removed as a member of the bar. As the case now
appears to the Court, he has been deprived of the privilege
of entering the jail, upon information given by unknown per-
sons. It does not appear that they were sworn. The facts
which they have stated are not laid before the Court. The
party whose rights have been taken away, is reproached with
an indictable offense : he is deprived of a privilege important
to his standing as a member of the bar, to his family, his
character, and his pursuits in life. This is done without his
knowing his accusers, or being heard in his defense. Let any
man ask himself, whether this be just? Whether he would
think the measure just if applied to himself? Whether the
laws of a free community ought to tolerate such manifest
wrong and oppression ? The opinion of the Court is, that the
depositions which have been produced on the part of the
sheriff, and jailer, do not justify the Court in refusing to
grant relief to Mr. M'Clelan and his client; and, therefore,
the Court makes the following order :

"On reading and filing an affidavit of William W. M'Clelan, one of
the attorneys of this Court, with a letter of the defendant, ad-
dressed to his said attorney, requesting him to call and see him for
the purpose of aiding the defendant with his professional services.
And the said Zenos Meigs Bradley having also, by his attorney,
moved this Court for a supersedeas in the above cause — On motion
of Mr. Sampson of counsel for the said defendant, it is ordered,
that the said William W. M'Clelan, attorney for the said defendant
in the above entitled suit, be at all times hereafter, at seasonable

RUGGLES HUBBARD AND JAMES L. BELL 3 ] 5

hours of the day, admitted to go in and out of the Debtors' Jail
of the City and County of New York, to consult with and advise
the said Zenos Meigs Bradley in relation to the said suit, or any
other suit now pending in this Court, if any there be; and that
Ruggles Hubbard, Esquire, sheriff of the said City, James L. Bell,
the jailer or keeper of the said jail, the turnkeys of the said jail,
or any other person whomsoever, do not deny, or in any way ob-
struct the said William W. M'Clelan from so, as aforesaid, going in
and out of the said jail."

THE TRIAL OF GRACE A. LUSK, FOR THE

MURDER OF MARY NEWMAN ROBERTS,

WAUKESHA, WISCONSIN, 1918.

THE NARRATIVE.

Grace A. Lusk, a school teacher in Waukesha, "Wisconsin,
was, in May, 1918, tried for the murder of Mary N. Roberts,
the wife of Dr. David Roberts a veterinarian of national repu-
tation, the author of standard works on stock-breeding and a
man of wealth who stood high in the business, social and re-
ligious life of the city. The defense was insanity. The trial
lasted fifteen days. The facts as they appeared in the
lengthy hypothetical questions propounded to the experts on
mental diseases were as follows :

Grace Alberta Lusk was born in "Wisconsin in 1878, the only-
daughter of Dr. A. P. Lusk, a practicing dentist. From early
childhood she was a diligent student, but sensitive and not physic-
ally strong. She graduated from the high school and taught at
several places until she was appointed a member of a state com-
mission to examine and report on the school systems of several
European countries. On her return she studied at the Universities
of Chicago and Wisconsin and at the latter institution in 1912
received the degree of bachelor of philosophy. During this time
she worked very hard and was troubled frequently with severe
headaches; also with attacks of neuritis. She then taught in the
Milwaukee public schools for over a year, doing settlement work,
and in 1912 she went to Waukesha, teaching in a public school and
doing literary work. Both her father and mother had peculiarities
and strange ways. Her maternal great-grandmother was an inmate
of an insane asylum and her mother once attempted to commit
suicide. In 1914 she became acquainted with Dr. Roberts, who
employed her to help him with his books. He told her he was
unhappy with his wife and she became infatuated with him. An
intimacy beginning with secret meetings at their offices and automo-
bile rides ended in trips to Milwaukee and Chicago where they at
different times had illicit relations. She insisted that he tell his
wife so that a divorce might be arranged but though constantly

(316)

GRACE A. LUSK. 3 ] 7

promising that he would do so the doctor could never be brought
to this point, even though at a hotel one night she made him
repeat the promise at the mouth of a revolver and with a Bible in
his hand. They had frequent quarrels and reconciliations. Once
she slapped his face and once wrote a letter to his wife telling
her all, which was intercepted by the doctor.

In June, 1917, he went away on a business trip with his wife and
on the night of his return Miss Lusk went to the house and acted
in such a manner as to make the wife suspicious and demand a
meeting of explanation the next day which was in some way inter-
fered with by the husband. But the wife was not to be put off and
on the afternoon of June 21st she appeared at the house where
Miss Lusk lived. High words passed between them: the wife
accused the youDg woman of pursuing the husband who, she de-
clared, cared nothing at all for her. Miss Lusk contended that he
loved her and to prove this went upstairs to get his letters to her.
She came down with them and likewise with a revolver in her
pocket. Previous to that Mrs. Roberts had told her she would
drive her out of the school and out of town and that she would
die as other women like her had. While Miss Lusk was upstairs
Mrs. Roberts telephoned to her husband to come to the house at
once. When Dr. Roberts and a friend entered the house a short
time after they found Mrs. Roberts lying on the parlor floor breath-
ing faintly. A physician being summoned he pronounced her dead
and then going into the hall he saw Miss Lusk standing at the head
of the stairs with a revolver in her hand and blood flowing from
a wound in her breast. She pointed the weapon at him and told
him to remain below. She asked for Dr. Roberts and when told
that Mrs. Roberts was dead said "Oh, I am so sorry." She then
asked him if the wound on her breast had pierced the heart and
was told that it was too low. Several times she put the weapon
to her breast as if to shoot herself again but withdrew it as if
lacking the nerve to kill herself. She requested the doctor to
write down a message to her father, which he did. After some
time she told the doctor to leave the hall and when he did so she
fired another shot into her body and called out "you may come
now." He and the Chief of Police who had been summoned to the
house rushed upstairs, found her desperately wounded and carried
her to the hospital. Several days later in answer to questions by
the officers of the law, she confessed that she realized at the time
what she was doing and that her reason for shooting Mrs. Roberts
was because she had called her obscene names. To one of them
she said in answer to the question: "How did you come to do it?"
"Because she called me such awful names. What I can't under-
stand is, how I was so cool and deliberate."

Before she met Mrs. Roberts in her house she had made a will
and had written a letter designating a long list of friends to whom
she desired her possessions — books, pictures, jewelry, china, cloth-
ing and other articles — should go at her death. Also a letter to

318 XIV. AMERICAN STATE TRIALS.

Mrs. Roberts stating all the circumstances of her relations with
her husband and telling her that the proper thing for her to do was
to withdraw and permit her husband, who did not love her, and
herself to marry. She declared on the witness stand that she
remembered nothing after meeting Mrs. Roberts the second time
until she found herself in her room upstairs: that she had not the
slightest recollection of shooting her.

When the jury returned into court with a verdict of
murder in the second degree, she made an assault upon the
prosecuting attorney and acted in such a manner that a com-
mission was appointed by the judge to examine again the
question of her sanity. It reported that she was perfectly
sane, whereupon she was sentenced to the State Penitentiary
for nineteen years.

THE TRIAL.1

In the Circuit Court of Waukesha County, Waukesha, Wis-
consin, May 1918.

Hon. Martin L. Lueck,2 Judge.

May 13.

By an information filed by the District Attorney on a pre-
vious day Grace Lusk was charged with having on the 21st
day of June 1917 in the City of Waukesha, wilfully, feloni-
ously and of malice aforethought, murdered Mary Newman
Roberts. And the prisoner being arraigned had pleaded 1st :
Not guilty; 2nd: that at the time of the commission of the
act charged, she was insane.

i Bibliography. "The Official Record of the Proceedings in the
Trial; Circuit Court Waukesha County, State of Wisconsin vs.
Grace A. Lusk. Date May 13, 1918. Andrew Snyder,. Shorthand
Reporter, 114 Grand Avenue, Waukesha, Wis. 1379 pages."

"The trial of Grace Lusk. Closing argument to the Jury of Hon.
Walter D. Corrigan of Milwaukee, Wisconsin, special counsel for
the State. Introductory history of the case by J. M. Carney, Pub-
lisher, Milwaukee, Wis., 1918."

2 Ltjeck, Martin Lawrence. Born 1872 Juneau, Wis. Gradu-
ated Univ. of Wis. Admitted to Wis. Bar, 1894; Practiced law at
Juneau 1894-1907: Dist. Atty. Dodge Co. 1899-1903: Mayor of Juneau
1907 ; Circuit Judge 1907-1919.

GRACE A. LUSK. 319

Dell S. Tullar,3 Assistant District Attorney and Walter D.
Corrigan* for the State.

Henry Lockney,5 James M. Clancey6 and James K. Lowry7
for the prisoner.

The following jurors were selected and sworn: John E.
Vrooman, Oconomowoc ; Charles Kurth, Jr., Hales Corners;
Ernest Schermehorn, Oconomowoc; Otto C. Buhrandt, Mus-
kego ; John Lumb, Pewaukee ; Peter Lerch, Waukesha ; How-
ard Baker, Oconomowoc; Frank Gabel, "Waukesha; Harry
Tornow, Oconomowoc; William Howard, Templeton; W. H.
Meadows, Oconomowoc; and William Koester, Oconomowoc.

Mr. Tullar. Your Honor: The State feels that the Jury would
have a better understanding of the evidence if it had a view of
the premises.

Mr. Clancy. I assume that under the statute they have a right
to such view but it must be exercised with care and caution.

The Court. It is so ordered, the jury to be accompanied by the
defendant and the attorneys on both sides. You will understand,
gentlemen of the jury, that its purpose is to acquaint you of the
physical situation and surroundings of the premises as used for
the purpose of enabling you to better understand the evidence as

s Tullar, Dell Sidney. Born 1857, East Troy, "Wis. Grad. Univ.
of Wis. (Law) 1881: Admitted to Wis. Bar, 1881; Practiced law
Waukesha, Wis., 1883-1919; Dist. Atty. Waukesha 1888-1890; Judge
Municipal Court 1895-1907.

4 Corrigan, Walter Dickson. Born, Almond, Wis., 1875. Edu-
cated at Almond and Grand Rapids High Schools; Iowa State Coll.
and Drake Univ., LL. B. 1896, LL. M. 1904; Admitted to Bar 1897;
Practiced law (Waupaca 1897), Plainfield (1897-1905); District At-
torney Waushara Co., Wis., 1899-1901; Asst. Atty. Gen. 1903-1905;
Removed to Milwaukee, 1905; Gen. Sol. Wis. Cent. R. R. 1906-
1909; Lecturer Law Dept. Marquette Univ.; at present engaged in
general practice of law in Milwaukee.

5 Lockney, Henry. Born Waukesha Co., Wis., 1874; Graduated
Univ. of Wis.; Studied law with D. S. Tullar and admitted to bar
1898; Practiced law Waukesha, 1898-1919; City Atty. 1902-1908;
Dist. Atty. 1912; State Senator, 1912.

e Clancey, James M. Born Cottage Grove, Wis., 1857; Educated
at Albion Academy; Studied law with L. K. Luse, Stoughton, Wis.;
Admitted to Wis. bar; Practiced law at Stoughton since 1887; Asst.
Atty. General Wis. 1891-1895.

7 Lowry, James Kerr. Born Waukesha, Wis., 1890 ; Graduated
Univ. of Wis. (LL. B.) 1916: Admitted to bar 1916; Practices in
Waukesha.

320 XIV. AMERICAN STATE TRIALS.

it may be produced here in Court. You are not to form any opinion
in regard to this matter from the view we are about to take, and
while counsel and you have the privilege of pointing out any
physical facts you desire, you are not to discuss any matter of
evidence in the presence of the jury.

(At the home of Bianca Mills.)

The Court. Gentlemen, this is the living-room downstairs. It is
conceded that this center-table stood approximately where it is.
This is the parlor here and the house faces north and south. There
will be some evidence with respect to this room. Here is the dining-
room and it is conceded that the telephone stood substantially
where it is now. "We will go upstairs. Here is the bed-room; there
will be some evidence with respect to this room. It is in the front
of the house and you will notice, faces south. You will notice the
bath-room here and the location of these rooms and the stairway
here. There will be some testimony with respect to that — observe
the style of the door-frame. Now we will go out this way and
that will give you an idea of the lay of the house. Now, we will
go to Dr. Roberts' residence.

The Court. This is Dr. Roberts' home. I just want to show the
location, that is all. Now we will go to the office.

The Court. This is Dr. Roberts' office. Now we will go to the
Y. M. C. A. building.

The Court. Here is the Y. M. C. A. building. Now we will go
back to the Courthouse.

MR. CORRIGAN'S OPENING.

Mr. Corrigan (after reading the indictment and pleas). Gentle-
men: We expect to prove that Grace Lusk shot Mrs. Roberts twice
with a Colt automatic pistol at the home of Miss Bianca Mills in
this city; that the first shot took effect on the right side, passing
through the body, the liver and lung and lodged in the shoulder
blade; that the second shot was over the heart, shutting off the
blood supply and was almost immediately fatal. The first shot was
fired in the dining-room where the telephone was. Mrs. Roberts
was found by her husband in a dying condition within two or three
minutes of the shooting. He called for Dr. Davis who came at
once and pronounced her dead. Miss Lusk was then upstairs and
two shots were then heard from there. Dr. Davis went to the
stair and saw Miss Lusk at the top of the stairs with the pistol.
She admitted the shooting and stated her reasons. The chief of
police came to the house shortly after, and joined Dr. Davis. Miss
Lusk refused to permit either of them to come up, having the
pistol in her hand. During that time she had given them a message
which she desired to communicate to her friends in which she told
about the shooting and why she had shot Mrs. Roberts and finally
she requested the doctor to stand aside, after talking with him
about where her heart was located and pointed out where she had
shot herself and then a shot was heard and she cried out, "Now
you can come up."

GRACE A. LUSK. 32 f

"We expect to show on the subject of motive that Miss Lusk had
been living on terms of intimacy and illicit relations with the hus-
band of the deceased; that this had gone on for a period of two
years or so; that it was accompanied by correspondence between
the two at different times, by numerous letters and telephone mes-
sages and meetings which were held at places remote from the city
of Waukesha; that Mrs. Roberts and her husband and Miss Lusk
were at some Baptist church supper or sociable along in December,
1914, and that the husband of deceased and Miss Lusk were en-
gaged in a conversation and that Mrs. Roberts came and asked her
husband to go home with her, and we will show that Miss Lusk
took offense at that and subsequently made threats of revenge on
that account. That after some time Miss Lusk was designing to
bring about the elimination of Mrs. Roberts from the Roberts' home
so that she might marry the husband. To bring this about she
undertook and threatened in various ways to make Mrs. Roberts
aware of the fact that these relations existed between them, in the
belief that if Mrs. Roberts learned the true situation she would
separate from her husband and leave the way clear for her. About
four weeks prior to the shooting Dr. and Mrs. Roberts had planned
a trip to the East together. Before going Miss Lusk was particu-
larly desirous of having Mrs. Roberts informed of the situation.
Dr. and Mrs. Roberts did not come back from the East until the
evening before the shooting. As soon as they came back Miss Lusk
again took up the proposition of carrying out her purpose to have
Mrs. Roberts informed of the situation; she called Dr. Roberts
at his office over the telephone. Frank Roberts, a relative of the
husband, was in the office and the husband told Miss Lusk that
he could not talk with her then and said that he would be at liberty
in a few minutes. The stenographer of the Roberts' Veterinary
Company was there with the doctor and Mr. Roberts told the
stenographer to call Miss Lusk, which she did. They had a con-
versation then over the telephone with respect to the question as to
whether Mrs. Roberts bad been informed of the situation and
whether her design and purpose had been carried out. The answer
made was unsatisfactory in that the information had not been con-
veyed to Mrs. Roberts. The doctor in a few minutes went to his
home where Mrs. Roberts and Frank Roberts were and within a
few minutes after Miss Lusk called at the Roberts' home and asked
for the husband and he stepped out on the porch and they had a
conversation as to whether or not Mrs. Roberts had been informed.
The husband then walked across the park with Miss Lusk toward
the Mills' home, and left her and came back. The next morning
there was an appointment made between the two ladies to meet
at the office of the defendant at the Y. M. C. A. building at ten
o'clock. The husband intercepted his wife and caused her to refrain
from going to that meeting. The two ladies met at the Mills' home
at about two of the afternoon of June 21st. Mrs. Roberts
called at the office of her husband just after two and he wasn't

322

XIV. AMERICAN STATE TRIALS.

there and she left word that she was at the Mills' home and for the
doctor to call her up as soon as he got in. He came, called up
his wife at the Mills' home. She said over the phone, "Is that you
Dave?" and he answered "yes," and she said "I am over at the Mills'
home and wish you would come over right away." He with Dr.
Blott, in an automobile drove over, arriving four or five minutes
after talking with his wife and discovered her lying on the carpet
of the parlor. Defendant had shot herself at the head of the stairs
and had called out "Now you can come." She was taken to the
hospital where she stated the reason why she had shot Mrs. Roberts,
which was that Mrs. Roberts had called her such awful things.

I have made no effort to go into all the details because I prefer,
in this case, which is so important and which is so serious, that
you should get it from the witnesses rather than from me. I have
only meant by this brief statement to give you a brief outline of
what the proof will show so that you may better understand the
evidence as it comes in from the witnesses. I will ask you in
advance not to consider what I have stated as evidence in this case,
for it is our desire that you should take the evidence as you get
it from the witnesses and from the evidence which is received here
under the court's ruling.

Mr. Lockney made the opening statement for the prisoner.

THE WITNESSES FOR THE STATE.

Frank Smith testified to the
correctness of a plan of the
premises and Warren O'Brien to
photographs taken by him the
day after the murder of the
rooms in the Mills' residence.

L. D. Blott. Am manager of
the Dr. Roberts Co. A little after
2 on June 21st was in the of-
fice when, in response to a tele-
phone call, went with the Doc-
tor to the Mills' house; found
Mrs. Roberts lying on her back
on the parlor floor apparently
dying. Doctor went across the
street to telephone; while he
was away I heard two shots
from upstairs; heard someone
call his name and saw Miss
Lusk at the head of the stairs;
she had a pistol and one hand
seemed to be bleeding; just then
Dr. Davis came in, went into
the room, came out and said

"she is dead, where is the other
party?" I said, "upstairs." He
went up and I left the house.
Mrs. Roberts was in the office
about ten that morning. She
says "I had an engagement with
Miss Lusk at ten o'clock, and
the Doctor asked me not to see
her and brought me over here
and wants to discuss the matter
first. I don't see why you are
called into it." He said, "Don't
understand that I don't want
you to see Miss Lusk but I don't
want you to see her now. I will
arrange a meeting for you at
some other time and place." She
says, "Now what is the use of
waiting, she wanted to see me;
she has something to tell me
and I might as well know it now
I think." Then I said, "Mrs.
Roberts, why not do as the doc-
tor says? Perhaps it would be

GRACE A. LUSK.

323

better to see her some other
time." She says "No, no, it
won't do any good to wait. I
have heard rumors about their
carryings on and want to know
the truth of it. I am sorry that
he stopped me, because I will
see her anyway." She says
"There she is now, 'phoning
him. I am going to listen."

Cross-examined. I tried to
persuade her not to see Miss
Lusk. I knew something of his
relations with her. The first
thing he said in the Mills' room
was, "Good God, Mayme has
been shot." Mrs. R. in the of-
fice that morning seemed excited
and indignant.

Dr. Richard E. Davis. I grad-
uated at Rush Medical College
in 1893 and have practiced here
20 years; knew Mrs. Roberts all
that time. About 2 p. m. June
21st was called by Dr. Roberts

over the telephone to the Mills'
house. He said a tragedy had
occurred; got over there in two
minutes, found Mrs. Roberts had
been dead only a few minutes;
her glasses were not on; started
to go upstairs. Miss Lusk was
at the top and she held her left
hand out over the stairway and
says, "Stop, don't come up
here." Her hand was all blood
and her sleeve and her waist
over her dress was all blood and
she had a gun in her right hand
that was held pointed down to-
wards the floor. I stopped and
I backed out. I begged her to
let me up to attend to her
wounds. She said she would
not. She said, "Oh, it is you
Dr. Davis, is it?" She wanted
me to tell her father something,
so I went and got some paper
and wrote down her statement.

This is the paper I wrote at
her dictation.

"Dr. Roberts had told me again and again and again that he loved
me and that he cared for no one but me, that his wife and he had
never cared for one another and that he cared for me more than
any one else in the world and that he promised me that he would
tell her before the 15th of June. He swore that on the bible. I
told him that if he didn't care for me that we could drop it all,
that the one dishonorable thing we were doing was deceiving her.
I went over to see her last night and he brought me back through
the park. I asked him again if he cared for me; he said he did;
he promised to go home and tell her. I called him up just before
Mrs. Roberts came. He said over the telephone that he had told
her he cared for me. She came and said to me that I had been
chasing him to death and that I was the damnedest fool that ever
lived. She called me every name, called me such awful things —
she called me such awful names. I am leaving enough money. I
want Miss Mills to be paid for every damage done to this place.
Everything must be paid for, father must see to that. Every debt of
mine is listed in my desk. I give you the address of my friend
Winifred Frye, Santa Barbara."

That was quite fragmentary
and she was under nervous

stress when she made that state-
ment.

324

XIV. AMERICAN STATE TRIALS.

When I was writing this the
Chief of Police came. She
asked me if it was Dr. Roberts.
I said, "no;" it was the chief of
police and she wanted to know
what will they do with me, will
they take me to jail? I said
yes. She shook her head and
said, "no, never." I stepped on
this stairway and had a conver-
sation with her and tried to
have her allow me to go up and
dress her wounds, etc., and she
would not allow that. That she
wanted to die. She pointed a
finger to the bloody spot upon
her waist, "the hole is right
there," she said. "Did that go
through the heart?" I told her
no, it was apparently too low.
Then she says to me, "would
you please go away." She was
in this position (witness indi-
cates) just ready to shoot her-
self and then she dropped the
gun again on the floor, kind of
relaxed and looked down and
saw that I was there and then
she says, "will you go away"
and I walked out to the library
table in the middle room; then
I heard the shot, then I came
back and she says, "now you can
come up here." The chief of
police and I went up. We had
her laid on a stretcher and she
looked up and kind of smiled
and said "It is so strange, I love
him still." I asked her why she
would do such a thing and she
answered because she called me
such awful names. She thought
that she was dying and I think
that we sent for the minister.
Before she fired the last shot
into her body I should judge
was probably an hour or an
hour and a half.

That night with Dr. Murphy
I made a post-mortem of Mrs.

Roberts. We found two gunshot
wounds and on her right hand
there was a little suspicion of
slight abrasion. One of them
was immediately fatal. That
entered the body between the
ribs on the right side and it
passed through the liver, the
diaphragm and the lower lobe
of the lung and out through the
rib near the angle of the left
side. We cut the bullet out
from under the skin just near
the angle of the scapula. One
could not walk after receiving
that wound. As to the other
wound the entrance was in the
left breast and entered the aorta
about an inch above the heart.
All blood comes or goes through
that into the system, a bullet
going through the aorta would
cause the victim to drop at
once. These two bullets are the
ones we took out of her body;

I have had 15 years' experi-
ence in the examination and
treating of insanity. At the
Mills' house Miss Lusk did not
show anything that indicated
melancholia of any grade, kind,
or degree. She did not show
anything there in her conversa-
tion or appearance that indi-
cated any mania of any grade,
kind, or degree. Her attitude
and answers and conversation
were apparently rational. Bas-
ing my opinion on what I ob-
served and heard her say, she
was, in my opinion, sane. Noth-
ing in her appearance or con-
duct indicated a trance-like
state. As she appeared to me
and as she talked to me in my
presence she was capable of dis-
tinguishing between right and
wrong.

Cross-examined. Had not seen
Miss Lusk very often before

GRACE A. LUSK.

325

that but had treated her some
years before for a sore throat.
I thought there was peril from
her command for me to stop, if
I did not get out of there that
she might do some shooting and
I stepped out. I didn't know
what she was going to do. I
wasn't going to take any
chances. Did not notice any
strange expression ; she was pale
as though in pain; her voice
was rather strained. Every time
I tried to go up there she would
insist that I would not; 5 or 6
times at least. During that
time I was talking to her from
the foot of the stairs. She sat
down on the top of the stairs a
part of the time. I think that
she laid the revolver down be-
side her once or twice. I got
the paper on which I wrote her
statement from the library ta-
ble. It was 40 minutes after
the chief arrived before the sec-
ond shot was fired; the bullet
passed clear through Miss
Lusk's body; after I told her

she had not touched the heart,
she would raise the gun and
then drop it. She was spurring
herself on so as to commit the
act; then she couldn't quite do
it. She wasn't probably very
much wrought about it, not very
much; she was rather calm for
a person acting under those cir-
cumstances. Her second shot
penetrated the lung; she was un-
conscious; we carried her down
on a stretcher. Mania, melan-
choly and dementia are acquired
species of insanity.

Mr. Clancy. Assuming that
the functions of the human
mind are thought, feeling and
volition you admit that those
three functions must work in
perfect harmony, must they not
doctor? Yes, and they do work
in harmony. But if there is
anything inharmonious about
their operation, then you have a
disturbed mental condition? No,
not necessarily. There is a great
latitude to be given within nor-
mal limits.

The Court. Do you contend, Mr. Clancy, that a person is not re-
sponsible for crime who has the power to distinguish between right
and wrong and not the power to abstain from doing the wrong act
although conscious that it is wrong?

Mr. Clancy. That I understand, Your Honor, to be the rule.

The Court. Now if a person has the power to distinguish be-
tween right and wrong but lacks the power to abstain from doing
wrong that person is legally responsible for crime in this state.

Mr. Clancy. I am simply trying to find out what experience this
expert had. Now he has qualified himself to speak as an expert
and they have qualified him as an expert and I am just testing his
ability on that.

The Court. I want to make a statement to the officers, that the
jurymen, if they so desire, may have the newspapers, but they are
to clip from them all references to this trial and if the jurymen
want to send any communication home or otherwise they cannot
send it personally over the telephone, but must ask the officer to
send out the communication for him. It won't be necessary to
call me.

326

XIV. AMERICAN STATE TRIALS.

May 17.

Dr. William T. Murphy. Have
practiced medicine here for 14
years; have had experience in
insanity cases; agree with Dr.
Davis as to Mrs. Roberts'
wounds; heard his testimony
also as to his conversations with
defendant and her actions; they
showed nothing indicating mel-
ancholia in any degree; would
consider her sane and capable
of distinguishing between right
and wrong.

Cross-examined. Normal minds
cling to life. But normal minds
may wish to die, also. Normal
minds wish to take their own
lives sometimes. It is perhaps
not within the power of any one
man to give the definition of in-
sanity. There are as many defi-
nitions as there are authori-
ties. A sane person could
contemplate suicide with com-
posure. I think from what I
have heard here and my under-
standing of insanity that she
was capable of judging the na-
ture and the quality of her act.
I reason from the whole general
procedure, taking all in all, not
one particular thing of the gen-
eral attitude that he described
from the conversation from the
logical message that she dic-
tated; those are the things that
I base my judgment on.

Don C. McKay. Have been
Chief of Police here for 8 years;
in response to a call from Dr.
Roberts, went to the Mills'
house; found the body on the
floor and the glasses there near
the couch. Dr. Davis told me
that Mrs. Roberts was shot and
that there was a woman at the
head of the stairs with a gun
and while we were talking the

woman spoke to Dr. Davis and
asked who was there and the
doctor told her who it was. She
asked Dr. Davis what they
would do with her and the doc-
tor told her they would take her
to jail. I saw that she had an
injury and that there was blood
and I tried to persuade her to
allow the doctor to come up
there and attend to her and she
refused. She told me that he
wasn't her physician, she said
Dr. Harkness was. We wanted
to get that gun and she said no,
we couldn't come. She asked
Dr. Davis where Mrs. Roberts
was and the doctor told her that
she was dead and she said "Oh,
doctor, I am sorry, I did not
mean to do it." She asked Dr.
Davis to tell her father she was
sorry for what she had done and
to write a message for her and
the doctor did the writing. She
pointed the gun at herself sev-
eral times. She said that she
called her such awful names. Dr.
Davis picked the pistol up on
the floor, and we moved her
from the head of the stairs and
I sent for the stretcher.

Cross-examined. The first per-
son I saw at the house was Dr.
Roberts, then Mr. Blott on the
porch. When she spoke of her
father she cried. She did not
evince anything that would indi-
cate that she was attempting to
do that which ordinarily shocks
the human mind, there was no
expression of horror, no expres-
sion of fear. She did not seem
to be afraid. The several at-
temps to bring the revolver up
to her breast was deliberate,
carried out calmly; the conver-
sation was calm and deliberate
and dispassionate.

A. C. Willbee. Am an insur-

GRACE A. LUSK.

327

ance agent here, formerly a
school teacher with Miss Lusk.
Met her about 10 a. m. June 21
on the street; she said she was
going to California in a few
days; a little later in the Y. M.
C. A. building she asked me to
leave, as some old students were
coming to bid her good bye;
said she would see me again at
3 o'clock.

Dr. David Roberts. Deceased
was my wife; we were married
in 1889; have lived here 29
years; first met Grace Lusk in
July 1914 at a church social;
the spring of 1915, I had been
writing a book on cattle breeds
and origins and I called on Miss
Lusk at the Y. M. C. A. and
asked her if she could help me
on this book. She said she
thought she could and would be
glad to do so. Miss Lusk called
me up one afternoon and asked
me to bring over the book. I
went over to the Y. M. C. A. and
I took the manuscript with me,
and we discussed the book and

the nature of it. During our
conversation Miss Lusk asked
me if I loved her. I said "Miss
Lusk I honor and respect you."
"Well," she said, "I don't care
to be honored or respected;
there are other things that I
want." Then I says, "what do
you want?" She says, "I want
you to take me to Chicago for a
good time." I said, "You would
have a lot of respect for a mar-
ried man that would take you to
Chicago for a good time." She
said, "other people do those
things, I don't see why we
can't." That was all that oc-
curred on that occasion. We
worked on the book both at
Waukesha and Chicago prepara-
tory to the printers getting it.
About 15 months. During the
time that we were working on
that book there were intimate
sexual relations between me and
Miss Lusk; also correspondence
and many meetings. I wrote
these letters to her.

Mr. Corrigan reads to the jury the letters of which the following
are extracts:

(1) When I passed through Chi. I transferred over to the
Twelfth street station; our tracks were still fresh on the sands of
the shores. It is after midnight and must stop but would like to
write a lot more and say just what I would like to say and say it
just as I feel. It would be some saying and feeling that cannot be
described by the few words that poor old Dan got together; some
people call it Boo but how mild for a big, strong, healthy, vigorous,
ambitious fellow to say Boo when he feels like more noise than a
locomotive. Good night little one— will see you soon— wish it were
right now, now, now.

(2) Just got your perfectly dandy letter and am so glad to hear
from you and no one got it but myself. Only have a moment to
write to you to let you know that nobody but me got it. This is
fine weather and it makes me feel like going out to pasture as we
once did. Of course I think well of you and in the kindliest of
feeling; my letter last night will include that. So good by dearest.
See you soon.

(3) Found your very kind letter awaiting me here. I am glad

328 XIV. AMERICAN STATE TRIALS.

to hear you are having a good time, some parties every night.
Leave here Friday A. M. for Portland where a stop of two days
will be made. Having a fine trip but don't think am as crazy as
some people about traveling except on short trips. Meet lots of
fine people on trips and have a pretty good time but don't like new
friends like old ones, so am anxious to get back to old Wis. for
many reasons that I don't care to give at this time.

Dr. Roberts. Was ordered by court to bring her letters to me;
here are all that I have kept.

Mr. Corrigan read them to the jury. The following are extracts
from them:

(1) I am so sorry dear, I couldn't sleep because I lost my
temper, so forgive me. I won't do it again. Perhaps when I
explain why I've been so hurt you'll understand. When you like
me again — will you call me up? You may also call me down if
you want to. I am sorry and I care for you. — Grace.

(2) My dear — There are two things that I think are better not
said over the phone. If I come down it will be on Northwestern
leave Milw. at 6 arrive Chicago 8:10. Be there to to meet me if
you can. If you can't be there at 8:10 I'll wait in ladies' waiting
room or near there for you. Wouldn't it be well for you when
you go into Chicago in the morning to phone Morrison and have
that room 2002 — or a similar high one reserved. And you could
take your bag there before you came to meet me in eve. Hadn't
you better have your mail sent to Sherman? By the way if any-
thing should happen that I could not come I would have Miss B —
telegraph you — to Sherman or Morrison? When you phone me in
morning tell me which hotel to telegraph to. Also don't you think
it might be best not to use the name of R there? Here's hop-
ing. P. S. Be sure you tell me how and where you will register
so that if I should miss you at station I'd know where to phone
or where to go. When you phone tomorrow better say "My friend

Mrs. will be at . I think the less said over the phone

the better.

(3) Dearest — I can't seem to find any polite writing paper that
fits any polite envelope down here. Do you mind having an assort-
ment or are you so dizzy with joy at receiving any letter from
your little fren that you can't see the paper? Of course it's up to
you to say "why certainly." I wish I were with you in that nice old
Chicago town. Oh, just wouldn't I make you sit up and take notice.
I certainly shall keep you busy when we do have a reunion won't I?

Intermission

I had to stop and drill my young hopefuls for most two hours
— now it's six o'clock. I don't like these disjointed letters. When
I sit down to talk to you I don't like to be disturbed. Suppose you
are thinking of supper — oh don't I wish I were at Hotel Sherman
putting some powder on my nose preparatory to going over to
the Boston Oyster Palace for a filet mignon (Isn't that the nice
steak?) Are you going over by Mr. Kranz's shop? I do hope so.

GRACE A. LUSK. 329

I'm so fond of the boxes that he sometimes sends me. Hope you
have good luck dear, I want you always to be happy and successful.
I love you just heaps and heaps and then some and — I want to
tell you so in every possible way — Perhaps I can soon any way,
here's hoping — Enclosed find six thousand and twenty-three bear
hugs etc, — As always your LiF Fren'.

(4) Chicago, 4:30 P. M., Thursday. Dearest: I'm here — and so
lonesome for you, what's this dull town to me when you're not here.
I keep looking at the door so see if it isn't time for you to come I
miss you so. I wonder if you thought as much of me as I have of
you today. It was nice of you to call me up today, I just loved you
for it. Went over to Field's and shopped. Found some silk for a
skirt at a wonderful bargain — $2.00 marked down to $1.35. Am I
not the Busy Shopper. I bought a beautiful present for you — and a
beautiful present for Miss Blodgett. See if you can tell which is
which. I want you both to wear 'em on Easter Sunday. Ask Miss B
to take the name off from yours if you like it. I hope you do. I
wanted to get you something else but was afraid you couldn't use it.
It was so sweet and generous of you darling to send me down here.
You've done lots of things to make me love you, but this I do ap-
preciate more than anything because I know that in your heart you
hated to have me go — I'm just thinking of you every second and
trying to imagine you are here with your dear arms about me and
your lips on mine — Oh my darling, I love you and love you. I'll
write you tomorrow you sweet darling. Good bye

(5) My dearest-dearest-dearest. I can't go to sleep until I ask
your forgiveness for being cross today. I love you so much and
I want you so awfully that it seems as if I just couldn't stand it
sometimes. I've been working too late down in that stuffy old
school-room and I've been unhappy because I want you. I loved
your kisses and I love you, you darling. I'm glad that you told
me that you loved me — and that you kissed me so tenderly. It's
made me happy to think of that. I think this is the spooniest
letter I ever did write — but I can't help it — it's nothing to what
I'd say if I had you here.

(6) My dearest: I keep thinking of you — I never wanted so
much to see you. I felt that you needed me. I thought that I
would try "thought telepathy" or something and make you drive
past. Let me tell you one thing, you let her scare you to death.
Why don't you come out frankly and say that you care for me —
and that she can go her way and you will go yours. The moment
you would say that she would back water if that is what you want.
But why don't you let her have her way? The moment she sees
that she can't bluff you and scare you that moment the fuss will
be over.

Dr. Roberts. On June 1st 1917 wife; next morning I went to
I saw Miss Lusk at the Wiscon- the Post Office and got it. This

sin Hotel, Milwaukee, mail a is it:
letter which she said was to my

330

XIV. AMERICAN STATE TRIALS.

Waukesha — Thursday
My dear Mrs. Roberts —

I have just come from spending the evening with your husband.
He has told me the full details of your Eastern trip etc. We plan
to be together tomorrow (Friday) in the city. I am going to ask
him then to decide finally between us. He has told me that it was
I who had all of his affections. I have begged him to go to you
and tell you the situation frankly for I felt you were a big enough
woman to desire his happiness. If he does not care enough for me
to do that, if it is I who have been made the plaything — then I'm
afraid I shall call him to account. Wouldn't it all have been much
simpler if instead of intimidating your husband you had faced
matters frankly and squarely and given him his freedom when
you lost his confidence and — all? It is he who has been made —
not truthful, and I who have lost my one and only reputation that
you might keep your "throne." It really isn't quite fair is it?

Dr. Roberts. When she asked
me to meet her in Chicago on
March 8 I told her I could not
as I had to take a business trip
then; this was over the phone;
she said, "Yes, you are going to
Chicago." I says, "Miss Lusk
did you mean this as a threat or
what?" She says, "I don't care
what you call it but that is what
I mean." I says, "I wish you
would explain yourself a little
more fully." Then she says,
"Very well, I will call you up a
little later and I will explain
more fully." In about half an
hour she called up and said, "I
have written a letter to Mrs.
Roberts and I am going to send
one of the girls to deliver it to
her personally, telling her every-
thing. I am going to leave on
the 3:30 car for Chicago, but I
want your final decision." I
says, "very well, I will call you
up a little later." So I hung
up the receiver and in a little
while I called her up and said,
"I have decided to meet you,
where do you want me to meet
you?" She said, "you meet me
at the Union Station at Milwau-

kee at 5:30." When I met her
at the Union Station at Milwau-
kee we quarreled a little about
going to Chicago. She went to
Chicago on the St. Paul and I
went on the North Western. I
asked her about this letter that
she wrote to Mrs. Roberts and
she said I have it.

Another time she phoned me
to meet her at the County Line.
I drove my auto out there and
she got in and we drove a little
way from the station. She said,
"I have something to ask of
you" and I says, "what is it?"
She says, "I want you to tell
me now that you love me more
than anybody else on earth, I
want you to tell Mrs. Roberts
the same thing." I says, "that
is out of the question, I can't do
that truthfully," and we quar-
reled and she says, "you won't
do it?" I says "no, absolutely
not." At that she struck me in
the face as hard as she could
strike and then we quarreled
and I took her to the next car
and back to Waukesha.

About June 1st I took her for
an auto ride and she insisted I

GRACE A. LUSK.

331

meet her the next day in Mil-
waukee; this was the time she
posted the letter to my wife. I
said "what do you want?" She
says, "I want you to get a room
and take me out to lunch," and
I did so. We left the lunch ta-
ble and walked over to the win-
dow and sat down and she said,
"I have something very impor-
tant to say to you." I says,
"very well, what is it?" She
says "I want you to promise me
right now that you love me more
than anybody on the face of the
earth and I want you to tell Mrs.
Roberts so too." I says, "that is
out of the question" and she
says, "you won't?" I says, "why
I can't truthfully." She says
"very well, you sit right here"
and she stepped back to the end
of the room and when I turned
around she had a revolver in
her right hand and was unfast-
ening a wrist watch or the one
on her wrist and laid it down on
a table, then she pointed the gun
at me and said, "I will just give
you five minutes to decide
whether you want to tell Mrs.
Roberts what I want you to tell
her or not." I stood up and
walked towards her and she said
"Don't you take another step or
I'll kill you just where you
stand," and so I stepped back.
She says, "I want you to put
your hand on that Bible and
promise this to me." One of
those Gideon bibles that they
have in the hotels. I put my
left hand on the bible and held
my right hand in the air and
promised that I would tell Mrs.
Roberts what she wanted me to
tell her. I begged her not to
make me tell Mrs. Roberts until
we had returned from our East-
ern trip on which we expected

to leave in a few days. She said
"will you tell her then?" I
says, "yes."

I got into my auto and rode
home. Early in June Mrs. Rob-
erts and I went to Worcester,
Mass., to a Stock Association
meeting, afterwards visiting
other Eastern cities; we re-
turned about the 20th, went at
once to my office. Miss Lusk
called me up; she wanted to
know when I had returned and
if I had a nice time and if I
could take her for a ride. I told
her that I could not, that my
nephew was waiting for me at
the house. She said, "can I meet
you tomorrow?" I says, "I am
going to be very busy, I'm
afraid not." She said, "I insist
upon seeing you tomorrow." I
noticed she acted like she was
angry and I motioned to Miss
Blodgett to step to the other
telephone which was a few feet
away. She says will you meet
me in Milwaukee tomorrow? I
says no I can't meet you. She
says I insist upon your meeting
me. Well I says, very well Miss
Lusk if you want to meet me
tomorrow I will meet you at the
residence of Mrs. Youmans. She
says I don't want to meet you
there, I don't want to drag any-
body else into this. She says if
you don't meet me in Milwaukee
tomorrow there will be some-
thing doing and Mr. Lockney
will have charge of the case. I
says, Do you realize the danger
of threatening people over the
telephone? She says I don't
know about that. I says just
repeat that again. She says will
you meet me in Milwaukee to-
morrow? I says no. I will not,
go ahead with the rest of the
threat and she would not but

332

XIV. AMERICAN STATE TRIALS.

stopped and hung up the receiv-
er. After I had been home a
few minutes my doorbell rang
and my nephew opened the door
and I heard Miss Lusk ask if
Dr. Roberts was in. I stepped
to the door and I said good
evening Miss Lusk, what can I
do for you, and she says "I came
over to see if you had told Mrs.
Roberts what I wanted you to
tell her." I said no, I haven't
yet but I will. Mrs. Roberts
stepped to the door and she said,
You folks come in and talk and
Miss Lusk answered I can't stop
but a few minutes so I won't
come in. Miss Lusk said I just
came to see if Dr. Roberts had
told you what I wanted him to
tell you and I answered, Why,
no, Miss Lusk I have just told
you that I haven't told Mrs.
Roberts that but I will tell her
and at that Miss Lusk spoke to
Mrs. Roberts and said I want to
see you about something and Mrs.
Roberts answered very well, I
live right here and would be glad
to have you call at any time; at
that Mrs. Roberts stepped into
the house. She then said I want
you to walk over home with me
and I says I can't do it, my
nephew is waiting here to see
me. She says I want you to. At
that I excused myself and took
my hat and told him to wait un-
til I got back as I would only
be gone a short time. I asked
her, Miss Lusk what do you ex-
pect to gain by coming to my
home as you have tonight? I
don't remember what her an-
swer was. That is the only part
of the conversation that I have
any distinct recollection of.
When I went back home Mrs.
Roberts said what did Miss Lusk
want and I told her that Miss

Lusk wanted me to tell her that
she was infatuated with me and
wanted me to give her up so that
she could have me.

Next morning I went to my
office about 9; my wife came in
about 10; soon left saying she
had an appointment; a few min-
utes later I saw Miss Lusk go-
ing to her office; went out and
met my wife on the street; she
said I am going in here to see
Miss Lusk. I says I don't want
you to meet Miss Lusk this fore-
noon. I says I have been talk-
ing to Mrs. Youmans and I want
you to come back to the office
with me and I will tell you
what Mrs. Youmans and I talked
about. That morning I had called
Mrs. Y. into my office and told
her that Miss Lusk came over
to my house the evening before
and that I was afraid of trou-
ble. I wanted Mrs. Youmans,
whom I knew to be a friend of
Miss Lusk and also of Mrs. Rob-
erts to meet with Miss Lusk and
Mrs. Roberts and talk this over.
Mrs. Youmans couldn't see them
that morning because she was
going to Milwaukee and she said
I will see you when I get back.
Mrs. Roberts wanted to see Miss
Lusk. I says I don't want you
to see her until Mrs. Youmans
gets back from Milwaukee. Mrs.
Roberts says Well, I want to see
her, I am bound to see her. Why
I says all right I will go over
with you to the Y. M. C. A. She
says I don't want you to. Mr.
Blott spoke up and says I will
go over with you. She says I
don't want you to go. I want to
see her alone. We went home to
lunch and I went over it again
and said it was just foolish to
see Miss Lusk until Mrs. You-
mans could get back to meet

GRACE A. LUSK.

333

them together. When I got back
to the office Miss Lusk called me
and said why didn't Mrs. Rob-
erts meet me this forenoon? as
she agreed to. I says because I
asked her not to. She says why
not? I says I want some one
with her when you meet. She
asked me if I had told Mrs. Rob-
erts what she wanted me to tell
her; I said yes; she said when
did you tell her? I said last
evening. She said what did she
say and I said she said a lot of
things. Miss Lusk hung up the
receiver then.

I stepped out of the office and
when I came back Miss Blodgett
told me my wife wanted me. I
got her on the phone and she
says I am at Bianca Mills', can
you come over? I says yes. Mr.
Blott and I got into the car and
drove right over. I got out,
rang the bell, and no one an-
swered. I looked into the par-
lor and saw Mrs. Roberts lying
there. I saw that she was dy-
ing, and called Mr. Blott. I
said "My God, see what has hap-
pened to poor Mayme." I
rushed across the street to Sam
Mills' residence and called up
Dr. Davis. I told both Dr. Da-
vis and the chief of police after-
wards to come over immediately.

I heard two gun shots just as
I went between the house and
the sidewalk, apparently from
the upper part of the house.
There was no weapon near her
body; Miss Lusk and I had quar-
rels in the fall of 1916; she ob-
jected to my taking my wife to
functions when she wanted to go
riding with me, I always gave
in.

Cross-examined. Am 52 years
old; have lived here 29 years;
have been State Veterinarian

and a trustee of the Baptist
Church; my book on which I en-
gaged Miss Lusk was pertaining
to the different breeds of cattle;
to advance the cattle industry.

May 20.

At that meeting at the Y. M.
C. A. Building where she first
told me she loved me and
wanted me to take her to Chica-
go. She said that she expected
a letter from a sweetheart in
Milwaukee and it didn't come
and it made her mad; we kissed
each other; don't remember who
kissed first; I owned two autos;
I went to Chicago on the aver-
age of once a week or once a
month during the year of 1915
and Miss Lusk went to Chicago
to meet me on this book several
times; we went to movies and
other shows; lunched together.
I gave her money for her ex-
penses; she went shopping a
good deal. In April I was go-
ing to Milwaukee on the electric
car; saw her on the opposite
seat with a gentleman; later an
elderly man got on whom she
addressed as father. When we
got to Milwaukee Miss Lusk
handed me a note in which she
asked me if I could meet her at
the Hotel Wisconsin and I met
her there. Miss Lusk wanted
me to get a room and have din-
ner or take her out to dinner
and I asked her what she did
with her father, and she said I
bought him a new hat and sent
him back to Waukesha; and I
said Miss Lusk you should have
brought your brother down from
college and taken your fathej
and brother out to lunch togeth
er. And she said my father
don't care for that kind of en-
joyment. Well I says neither do

334

XIV. AMERICAN STATE TRIALS.

I care for anybody that will
treat their parents as you have
treated your father and for that
reason I will not take you out
to lunch. She says very well if
you don't, some one else will,
and named a married man in
Milwaukee. I left the hotel
then.

It was at the County line; she
got angry and struck me in the
face. It took about three days
before my eye was in a normal
condition. I could notice little
black drops falling in front of
the pupil every little while.

Mr. Corrigan. The defend-
ant's counsel has kindly con-
sented that I call a witness who
wishes to leave town.

Walter H. Steiner. Am a spe-
cial Agent of the U. S. Depart-
ment of Justice. Saw defendant
at the hospital on June 26; I
asked her if she realized at the
time what she was doing; she
said that she did. She said that
she was in a perfect state of
mind, sound state of mind at the
time she committed the tragedy;
her reason for doing so was be-
cause that Mrs. Roberts used
obscene language with reference
to her. Morris S. Tullar, the Dis-
trict Attorney and the Sheriff,
Albert Morris, were present.

Cross-examined. I told her I
was there in my official capac-
ity; she seemed cool and placid;
we joked a little about things.

Dr. Roberts. When she came
to my house the evening before
the shooting I said Good evening
Miss Lusk and she sort of
sneered at my calling her Miss
Lusk, as if I should have called

her Grace. I asked her what she
expected to gain by coming to
my house that night on our way
through the park. I kissed her
and I said I love you Grace and
I am sorry that you are feeling
this way. I meant it as I had
always meant it to calm her and
comfort her if it was any com-
fort to her.

When I wanted her to meet
Mrs. Yeomans, I planned that
Miss Lusk should drop me in-
stead of for me to drop her. She
had asked me to tell Mrs. Rob-
erts that she was infatuated
with me and wanted Mrs. Rob-
erts to give me up so that she
could have me. I never told her
at any time that my home life
was unhappy. There were times
that I liked her very much and
I may have loved her.s

Elizabeth Blodgett. Have been
stenographer for the Dr. Rob-
erts' Co. for 4 years; frequently
called up on the phone for the
Doctor and Miss Lusk. On the
evening of June 20 heard a con-
versation between them. Heard
her say I want you to meet me
in Milwaukee tomorrow, if you
don't I will have Mr. Lockney
take charge of the case. He said
do you know the penalty of a
threat over the telephone and
she said, no. And he says go on
and repeat the rest of it and she
didn't say any more, she hung
up the receiver; she used to en-
close letters for him in envelopes
addressed to me; several times
she sent me a little present for
my trouble.

May 21.

Dr. Roberts (recalled). The

s The witness' cross-examination occupied the most of two days
but was devoted mainly to minute details of what he had testified
to his direct examination.

GRACE A. LUSK.

335

last year of my acquaintance
with her I hadn't noticed any-
thing wrong with her mental
condition. Considered her per-
fectly normal except when she
was angry.

Mrs. Gretlia Neumann. Mrs.
Roberts was my daughter; I
lived with her; she was 52 when
she died.

Mrs. Mayme Ward. About Oct.
9, 1916 I overheard a telephone
conversation between Miss Lusk
and Dr. Roberts on the same
party line as the Y. M. C. A. I
went to telephone and there was
somebody talking. Of course I
listened. Miss Lusk said she
wanted him, the doctor, to take
her some place, but where I
don't know and he said he
couldn't as he had another en-
gagement and she said if he
didn't take her that evening that
she would send his letters to his
wife and by special delivery in
the morning. He said Oh, Grace
you can't be feeling very well

and she said, Oh there is noth-
ing wrong with me.

May Collins. Am Superintend-
end of the Hospital here; de-
fendant was brought there about
3 P. M. I asked her what had
happened. She said that she
had been in a quarrel with Mrs.
Roberts. That she called her
such awful names. Asked me if
I thought that she would die. I
asked her if she wanted to, she
said yes, and to telephone her
father.

Alvin J. Bedford. Am a po-
liceman here; got to the Mills'
house after the shooting about
2:45; Dr. Davis asked her why
she did this and she said Mrs.
Roberts called her such awful,
awful names. Went to Miss
Lusk's room after we took her
to the hospital; found some let-
ters, some cartridges and two
empty shells. There was blood
on the writing desk and on some
paper that was on the writing
desk. Remember finding this.

Mr. Corrigan. They read as follows: (1) "This is the work of
the man who said he loved me. God forgive me, I love him. Pay
Bianca for the house, I have spoiled it. I love you."

(A ten and two cent stamp uncancelled.)

(2) "My dear Mrs. Roberts: Why did you not keep the appoint-
ment made at your urgent request? Is it that you do not want to
know the truth about the affair? I do not think that it is neces-
sary to have a "scene" or anything of that sort. I have asked
Dr. Roberts to tell you this and he promised me that he would
before the 15th of June. To me the only beastly part of this has
been in the * * * but if we can see one-another it will clear
up all of this misunderstanding. It seems to me the wisest for all
concerned. If Dr. Roberts is afraid to have you hear the truth from
me I should think it would make you realize that there was some-
thing you should know. Most sincerely Grace A. Lusk.

(3) An envelope with some enclosures endorsed.

(4) "In Explanation. It is a bit hard to write this for the ma-
jority of folk who don't care for me and who have been so active
in criticising me, I have no explanation. I should have known
better than to play with fire: I should have known that men
have one code of honor for the women they love and another for

336 XIV. AMERICAN STATE TRIALS.

the woman to whom they are married. I have had the theory that
love between man and woman was stronger than all the legal
ceremonies in the world; when that was lacking there was no sanc-
tity in marriage. I still believe so. But the man in the case has
been too much of a coward to face his wife and tell her the truth.
He has never been true to her. Now that I have had to suffer I
am going to insist that he tell her how matters stand, that he be
honest with her. If he will not, if he is still afraid he will have
to be afraid of me this time. I am not the type of a woman to
be lied to. Oh, I am sorry, sorry, sorry that this has happened —
yet I would rather have had this experience, painful as it has been,
than to have gone through life without knowing what love can
mean. I can't honestly feel that I have been "sinful." We have
cared as much for one another as a man and woman can — the only
treason has been in not telling Mrs. R. I have always wanted to,
but he was afraid. Ah, well, it will soon be over. I am not afraid.
I have loved my friend very, very dearly. I have made my work
my religion, Labor re est orare. I have tried very hard to put the
best there was in me into it. Labor re est orare sang the monks
in olden times. God my brothers takes our toil for homage sweet.
I hope dear father doesn't take this too hard. I have never caused
him so very much worry. I want him to forgive me now. I just
can't live as I have been living these last few weeks — I have been
almost crazed with heart-ache and humiliation — Please give enclosed
letter, unopened, as addressed"

The Business Part. "I wish to be buried at Stoughton, not much
fuss over a funeral. If Mr. Westcott will be so kind, I'd be very
glad if he would say the little prayer at the end. I think that per-
haps the little new grey frock from Heller's will be ready for my
last "party." Fresh underwear will be in my top drawer. I want
my turquoise pin with me and my two diamond rings. My bank
books are at the bank. The school board owe me $200 — I have
taught all but ten days of the year. (Do not let them deduct all
of the June check.) My savings account had no interest allowed
(when the bank book was turned in last January) on $175 etc.
deposited after June 1st. That interest shall be added to the in-
terest on the next sum that was in the bank Jan. 1st.

Ask Jennie Hale and Mrs. Gregory if they will come out and
straighten things out. Perhaps Maude Shafer will help — Ask Maude
if she will please write any necessary letters. Father of course has
the right to dispose of my personal things as he wishes but I should
very much like to have my friends have my little things much as I
have designated. Pay room rent for June and July if necessary to
Bianca — until my belongings are disposed of. I owe Dr. Harkness
about $5.00 some small accounts at Gimble Bros, the Boston Store,
Love Bros. Christoph's News Stand. My frock at Heller's is not
paid for, $19.75 also a new suit, total $39.59. Probably they will
take the suit back as it is if allowance is made for alterations.
If they don't send it to Winifred. I have some cash on hand $27.00
or more — in my writing desk. — Grace"

GRACE A. LVSK.

337

Mr. Corrigan read a paper dated May 26, 1917 (typewritten). It
was headed "Inventory Personal Property" and appeared to be a
list of her belongings which consisted of a life insurance policy for
$1000, a savings bank account of $500; money due her from the
School Board, $250, books and pictures; picture post-cards, piano,
silver spoons and jewelry, china and glass-ware and clothing; these
were set out in detail and at the side of many of them was written
in ink the names of the friends she wished them to go to. Like-
wise a will duly executed and witnessed, dated June 1, 1917, in
which she directed that she be buried beside her mother and that
$400 be spent for a monument, a bequest to her brothers and a
female friend and the residue of her estate to her father.

Maurice S. Tullar. Am Dis-
trict Attorney of this County,
but am not acting in this trial.
The afternoon of the tragedy I
made a search of the Mills'
house. In a desk in Miss Lusk's
room, I found some trinkets, let-
ters from Dr. Roberts to her, a
number of foreign picture post-
cards and a letter from her to
Mrs. Roberts.

Three or four days after I
talked to her at the hospital.
Mr. Steiner and Sheriff Morris
were there too. Mr. Steiner had
been asking her relative to a
violation of federal statutes. She
said she wanted Mr. Lockney
there and either myself or the
sheriff went to the phone and
asked him to come up. I said
How did you come to do this?
Her reply was, I shot Mrs. Rob-
erts for having called me such
terrible names but I can't see
how I did it so deliberately.
Heard Mr. Steiner ask her if she
realized at the time what she
was doing; her answer was that
it was a sane and open act of
hers; that she realized what she
was doing.

Later in the county jail I
asked her if the offense of adul-
tery had taken place in Wauke-
sha county with Dr. Roberts.
She said yes. I asked her if she

would take the witness stand
and tell all of the facts con-
cerning her acts of adultery and
if she would have her father
sign the complaint charging Dr.
Roberts with adultery. She said
I will talk it over with my at-
torney, Mr. Lockney and I will
let you know.

Cross-examined. She told me
that she shot Mrs. Roberts be-
cause she called her such awful
names, the second time she re-
peated it she used the word ter-
rible: in response to Mr. Stein-
er's question she used the word
obscene. I asked Dr. Davies be-
fore I went into the room as to
her ability to see me and to talk
to me and Dr. Davies told me it
won't do any harm to talk to
her.

Albert L. Morris. Am Sheriff
of this County; a few days after
the shooting I went to the hos-
pital with the District Attorney
and Mr. Steiner for the purpose
of talking with Miss Lusk. Mr.
Tullar asked her if she had shot
Mrs. Roberts and she said that
she had. He asked her why did
you shoot her, and she said that
she called me such awful names
but what I can't understand is,
how I could have done it so cool-
ly and deliberately. I don't re-
call if Mr. Lockney was present

338 XIV. AMERICAN STATE TRIALS.

at the time; she was on a cot, Paul 8. Kimball. Am clerk of

apparently suffering pain, but the Municipal Court here; have

she seemed cool and deliberate, made a special study of fire

John Schaeffel. Am Coroner arms. Made an examination of

of this County; went to the the different bullets that were

the house about 2:40 the after- in the possession of the coroner

noon of the tragedy. Found and the different shells that

blood stains two feet from where were found, to find out whether

Mrs. Roberts was lying and also or not they fit that gun. They

a small bloodstain near the tele- do.

phone on the floor on the carpet. E. R. Estburg. Am a banker

Did not notice any bloodstains here; have made a study of

upon the door-casing of the door- handwriting; have examined the

way. letter found in Miss Lusk's

Erick E. Keyser. Am an op- room and addressed to Mrs. Rob-

tician; remember selling these erts. I am of opinion that it

glasses to Mrs. Roberts. was written by Miss Lusk.

Mr. Corrigan read the letter.

"Dear Mrs. Roberts: It has been a desire with me for a long time
to tell you frankly about the state of affairs between Dr. Roberts
and myself. I have asked him repeatedly to tell you the whole
story but you seem to have terrorized him to a pitiful degree. If
I was to blame you for any one thing it would be for that. You
must have known for many years that there did not exist between
your husband and yourself a bond of honest confidence that is
essential if the higher standards of marriage be upheld. You must
have known for a long time that your husband's affections had
passed from you — that he cared for some one else supremely. That
is sufficient annulment of any marriage vow that was ever given.
Had you gone to him and said frankly "If you do not care for me
alone, take freedom — live your life in the way that will give you
the most happiness and let me go my way" — if you had given him
this opportunity of choice and he had said that he wanted you alone
— then you would have given him the chance to play the part of
an honest man. But you have not been fair. You have threatened
him until rather than face certain results that he feared, he had
lied and lied, played the hypocrite and coward until he has no
moral fibre left. That is the way you so-called "Good," "Moral"
women do things. In order to keep your reputations, to live lives
— of ease (parasitic we term them now) — in order to do this, you
make the other fellow do the sinning. If there really is an Omni-
potent Judge somewhere I wonder how much of the blame he will
fasten on you. When your husband first came to me it was for
business or at least that was the excuse. But he did all the pup-
suing. I thought it was all quite a good joke, in fact it would
never have occurred to me to take the situation seriously if one
night, at the Baptist church — some supper or fair — you had not
come up to us when we were talking in the most innocent fashion
imaginable and rushed him away. You did not do it in a cour-

GRACE A. LUSK. 339

teous manner. I vowed thereupon to get even with you for your
discourtesy. AND I HAVE, only I have hurt myself in doing so.
Your husband assured me the first time that I ever talked with him
that his home life was most unsatisfactory, that between you two
after the first few months of married life there had been the most
unsatisfactory relations as far as he was concerned. That there
was not one vestige of love between you, that he felt he had been
cheated — that you were a good housekeeper, but that he wanted
something more. Later when we got to know one another better
he told me that your sexual relations were the primary cause of
all the trouble — that "she is as sterile as a mule." He felt that he
had been cheated in the marriage game — tied to a passionless
woman. I asked him why he did not ask for his freedom, that if
you had any pride you would not wish to hold him under those cir-
cumstances. He said that you were so madly jealous that you
would not do so — that you threatened to commit suicide at the
slightest pretext. Rather than have things disagreeable he would
lie. "Better to lie a little than to be unhappy much." He and I
have always disagreed about one fundamental thing. I believed
that we have done nothing wrong because we both have cared for
one another more than for anyone else in the world. When a man
and a woman care for one another like that — there can be no bond
stronger in heaven and earth. I have begged him again and again
to tell you honestly how matters stood. And always he is afraid.
It is never the nature of the thing that is done that he minds, it
is being discovered by you. With me I have felt that our only sin'
was the underhandedness of it all. Never in my life before have
I done anything which even bordered on being unconventional — and
this episode has almost killed me. You must understand if I had
not cared supremely for the man — and have been sure that he cared
for me only — I should never have done this thing. Every moment
of the subterfuge has been galling. I hate to tell you how much
your husband has cared for me. That seems most ungenerous.
But I want you to realize that it has been a genuine "case." That
he has given me presents indicates nothing. But there has not
been a day for three years when — if we were not angry — he has
not called me up by phone. Every Sunday morning at ten-thirty
he has talked to me until he must have been chronically late to
church. You have never gone out in the evening but what he has
rushed over to his machine to be out with me. Every night, for
instance last winter, when you went to those concerts at the Au-
ditorium we were together. We have been to Chicago together at
least once a month for three years. He came down to Peoria to
see me last summer. When you were West he wrote me almost
every day and was mad to be home (he said). Last winter when
you insisted on accompanying him to the Stock show he tried to
get you home by Friday. You threatened to kill yourself then, did
you not? In spite of that he had to come down Friday and staid
with me until midnight while nephew took you to the show. He

340 XIV. AMERICAN STATE TRIALS.

was over to me the next morning before nine. And he stayed until
you almost missed the train. While you were sick last winter he
was over with me every night. He made no secret of the fact
that if you had been called to Angel-land that it would be a happy
solution of the difficulty. In the Eternal Triangle the only solu-
tion of the problem is the elimination of the one character. The
two who should remain are those whose affection is mutual. How-
ever this one thing may console you. If you have suffered pangs
of that green-eyed monster, Jealousy, your husband has had his
turn. He is crazy when I am out of town for more than two hours.
Usually stands down on the Five Points and watches for my car to
come in. He very effectually broke off any masculine friendships
that I had out here. He was even so jealous of my being at the
Bucks' that he would hardly speak if I went there to a meal. There
is no use of my telling the details of our "case." I am sorry that
it ever started. It has wrecked my life, brought sorrow to those
who are dear to me. I have wondered often if you have really
•cared. It seemed to me that if you really loved your husband un-
selfishly you would want him to be happy, honorably, even if it
were a sacrifice to you in some respects. It is not an unheard of
thing for a husband or a wife to give up voluntarily the mate whose
love had been lost. Did you ever hear the story of Buskin — more
recently of James K. Barrie? That seems to me an infinitely more
dignified course than the one which you have pursued. Besides you
are an active member of a religious cult whose leader said:
"Greater love has no man than this — that a man lay down his life
for his friends." You teach in Sunday School the beauty of a life
that is unselfish. Yours is supremely selfish. You teach that it is
a sin to make a fellow-man to fall; you have kept your husband
in a bondage where he has lied, committed adultery, ruined the
lives of innocent women, been a hypocrite. When I started this
I did not mean to blame you — but I cannot help feeling rather
bitter for the way in which your sanctimonious life, your selfishness
has brought to me. Perhaps I can forgive you some time. Will
you some time read Ellen Keyes' book, Love and Marriage? Then
you will understand the modern woman's attitude on sexual morals.
It is far removed from the stand that marriages are made in
heaven. If some of them are made there it is because the angel
who supplies the common sense has moved out. Shall I sign my
name, It is"

THE WITNESSES FOR THE DEFENSE.

Prof. A. H. Schultz. Was L. C. Currier. Am Clerk of

principal of public schools in City of Stoughton. Was at

Stoughton prior to 1902. Miss school with defendant there. She

Lusk was a pupil of mine; her was known to all of us as a

character and conduct were ex- bright, intelligent student,

cellent and she was unusually Seemed to be rather more partial

studious, to the company of the young la-

GRACE A. LUSK.

34

dies than to the boys. Her feel-
ings were easily hurt, she was
easily moved to tears.

Walter Hintze. Was at school
at Stoughton with Miss Lusk.
She was a good student — play-
mates mostly girls of her own
age. She was sensitive and in-
clined to be somewhat emotional.

Cameron W. Fraser. Knew de-
fendant at Menominee Falls
when she taught school there.
She associated with the best peo-
ple and her standing as a
teacher was excellent.

Charles F. Henrici, 8. P.
Schlaefer, Carrie .Church, Dr.
William B. Campbell, Mrs. C. W.
Fraser, residents of Menominee
Falls testified to the same effect.

Dr. T. W. Evans. Live in
Madison; am a physician; knew
defendant's father and mother
for years. The senior Mrs. Lusk
was a very nervous and melan-
choly person. When I was treat-
ing her sometimes when she was
seriously ill she would have the
house locked up so that I could
not get in. Her husband Dr.
Lusk, the dentist was very nerv-
ous and emotional in his work.
Have seen him come from in
front of his house, get down in
front of my own and turn short
around and go back and turn
around and go back again and
he would do that repeatedly.

Cross-examined. He practiced
dentistry in Stoughton for many
years; he is now 74, practicing
his profession here.

Prof. Walter H. Cheever. Am
a teacher in Milwaukee public
schools; knew Miss Lusk when
she attended the Normal School.
She was an excellent student — a
wide reader. I thought that she
was working too hard. Her rep-

utation for chastity was never
called in question.

Mrs. Helen Stark. Knew de-
fendant at Menominee Falls;
she had very severe headaches;
she seemed depressed and nerv-
ous— seemed irritable at times;
knew her afterwards in Milwau-
kee. She suffered from severe
headaches there too.

Mary D. Wolfe, Maud Schaef-
fer, Evalyn Calmerton and Fran-
cis A. Blood, testified to the
same effect.

Robert Coe. Knew defendant
when she was attending the Nor-
mal School at Whitewater. I
was a student there; her repu-
tation as a student was splen-
did. Her reputation for chastity
was above reproach.

Grace Alvord and Mrs. Jane
Hale testified to the same effect.
May 22.

Dr. Edward B. Owen. Was
living with Dr. Lusk studying
dentistry when defendant was
born. There were a great many
peculiarities about his mind.
Sometimes he would be very
nervous and he seemed to not
know what he was doing some
of the time; for instance, if he
asked me a question he would
ask the same question time and
again. When he would leave
the office I have known him to
go back three different times to
see if those doors were locked.
Mrs. Lusk was subject to severe
headaches and she would get
very irritable.

Cross-examined. He had a
good practice while I was with
him and was regarded as a suc-
cessful dentist.

Dr. Herbert H. Hanan. Am a
dentist; defendant is my cou-
sin; studied dentistry with her
father; as to him there were

342

XIV. AMERICAN STATE TRIALS.

things that occurred every day
that were out of the ordinary.
He would come in and take off
his hat, hang it on a nail, take
it down, look into it, say "yes,
yes, it is there" and hang it up
again. He was very irritable at
times and excited.

Louia Henika. Attended the
University at Madison with de-
fendant; we roomed together
and graduated in 1912; she had
very heavy work there — more
than is usually accomplished by
the average student in a school
year. She suffered from head-
aches, perhaps once a week,
once in two or three weeks or
once in four weeks; they were
irregular, they prostrated her.
When convalescing from these
attacks her face was drawn and
she seemed tired and pale. She
suffered from neuritis. She
reached the stage where she did
almost no writing and I wrote
some of her letters for her.

Prof. C. F. Loomis, August Ja-
cobson, Mrs. H. C. Rhodes, Mat-
tie Walton and Mary Anderson,
residents of Waukesha testified
to her good work there in the
schools and womens' clubs.

Myrtle E. Lull. Roomed at
Miss Mills' house; saw defend-
ant daily. She was very pale
and nervous. She 'looked as
though she had been through a
long illness. Headaches aver-
aged two or three times a
month. She did so much read-
ing that I never attempted to
keep track of the books. Went
to see her at the hospital the
afternoon of the shooting. She
said: "I don't see how I could
have done such an awful thing,
but I did not know I did it. She
called me such awful, awful
names." She was gasping a

great deal at that time, it
seemed an effort for her to
breathe and she could only say
a few words at a time.

Prior to the tragedy she
seemed to be depressed a great
deal of the time, didn't seem to
be interested in things that she
had been formerly — her mind
seemed to be preoccupied. The
day of this tragedy I ate dinner
with her. She ate hurriedly and
very little.

Mrs. Catherine Smith. Am a
close friend of Miss Lusk; she
visited me in Madison the spring
of 1917. I felt that she was a
little depressed, that she wasn't
acting quite like herself at that
time. She said that she was not
well; she told me that she had
not been sleeping and she could
not use her hands to write with,
she was very nervous.

Dr. Fred H. Berry. Am a
dentist; was assistant to Dr.
Lusk in Stoughton. He was
what you might call a very er-
ratic man; he seemed to have an
idea that he had enemies; some-
body that was trying to get him;
he was continually on the alert
for damages that might be done
to him to the extent that he
seemed to be always well armed
and well on the alert for trou-
ble. One of his peculiarities
was that he never kept books
but made all his little notations
on clippings of paper, often tear-
ing the white margin from the
newspaper, then those were
thrown onto a table which he
called his desk. He never al-
lowed me to have a key to enter
or leave the office.

Br. W. C. F. Witte. Am a sur-
geon in Milwaukee. Boarded in
the same house there with Miss
Lusk for over two years. Some-

GRACE A. LUSK.

343

times she would enter into the
conversation of the topics of the
day readily and pleasantly and .
at other times she would not
talk to you at all. If you did
not agree with her sometimes
she would get very cross about it
and become quiet and probably
would not talk to you for two or
three days and again she would
be jovial and pleasant.

E. D. Main. My father owned
the farm next to the Tipple
farm. Knew Mary Tipple, wife
of Dr. Lusk, went to the same
school. She would have spells
which you call St. Vitus' dance
and she had nervous spells and
she had whole terms when she
would have to stay out of
school.

Lovinia South. Knew David
Tipple the father of Mrs. A. P.
Lusk, also Louisa F. Bond, Mrs.
Tipple's mother and great
grand-mother of defendant,
when I was a school girl. The
latter was insane, in an asylum
part of the time. All I knew
about where she was when she
was away was from hearsay.

Abbie Jones. Was making
some traveling dresses for Miss
Lusk on June 21; she came in
about one that day to be fitted.

Cross-examined. At the time
she left, each of us said good
bye. She was talking to me
about taking a trip to Califor-
nia. Did not notice anything
different on the 21st of June
about her than at any other
time. Said she would come
down next morning and we
would talk it over.

Agnes Devereux testified to
the same effect.

Mr. Lockney read a certified
copy of the records of the Wis-
consin State Hospital for the In-
sane as to the admission therein
of Louisa F. Bond, November 4,
1864.

William B. Dawes (deposition
admitted by consent). Knew
Dr. A. P. Lusk in Stoughton. He
was kind of a peculiar acting
man. He never associated much
with business men. (The wit-
ness told of occasions when he
went back several times to lock
a door.)

Dr. Arthur A. Brockway. Am
an Osteopath. I bought this pis-
tol for defendant. I had previ-
ously taught her how to shoot.

Margaret O'Malley. Used to
work in a law office here; some
time in May defendant told me
she wanted to make her will. I
drew it up for her. She said
she would write a letter dispos-
ing of her chattels as she had so
many friends she wanted to re-
member. This is not the same
will I drew up.

Augusta Klinger. Am a teach-
er here. Saw defendant often
at the Mills' house. She was
suffering from neuritis when I
first knew her and headaches. At
first seemed very weak but later
she got better, then about the
last of the year she seemed dif-
ferent from what she had been
both physically and mentally.
She had periods of depression,
a great deal of exaltation, then
times of preoccupation, almost
a loss of memory.

THE PRISONER'S STATEMENT.

Grace Alberta Lusk (sworn). I was born March 3, 1878,
at Stoughton, Wis.; my father is Dr. A. P. Lusk. My mother died

344 XIV. AMERICAN STATE TRIALS.

in 1903; I went to school in Stoughton 10 years, then to the White-
water Normal; in fall of 1896 went to Menominee Falls to teach,
then to the Milwaukee Normal, graduating in 1900, then back to
teach at the High School in Menominee Falls. It was at this time
my headaches began to appear. Went home for the summer and
then commenced teaching in Milwaukee, seven or eight years.
Suffered from headaches all of the time that I was in Milwaukee.
I would simply be prostrated and the pain was very, very intense.
While teaching in Milwaukee I always was carrying on some study.
I studied Latin with a private tutor. I studied French for two
years and completed one course of University extension work in
English and got about half way through with another. Went to
Europe while I was teaching there twice. The first time I went
over for the summer with a friend. The next year I received the
appointment from the Mosley Commission to visit European schools,
to inspect and report upon the school system in England and Scot-
land, and Holland. I left in April and got back before the opening
of school in September. I taught until June, 1911, when I was
given leave of absence. Went to the University of Wisconsin the
next year for my bachelor's degree; bachelor of philosophy. I was
there but one year but I had done some work at the University of
Chicago in the summer time and I had spent two summers at the
University of Wisconsin.

In Milwaukee for two years I had charge of the Boys' club down
in the Jewish settlement. While attending the University in 1911
and 12, I had this severe attack of neuritis. I used my left hand
to write with until I lost the use of that about five or six weeks
afterwards. I wanted to go back to the University the next year
for my master's degree — the physicians said that I was. not able to
go. Then I came to Waukesha to spend a couple of weeks with
Miss Mills the last day of August 1912. My purpose in remaining
in Waukesha during 1912 and 13 was to get strong enough to go
back to teaching.

Was treated by several physicians during that time and at the
end of 1913 had recovered in a measure. In the fall of 1914 I
entered the Waukesha schools for the first time as a regular school
teacher. The high school was overcrowded and I was given a room
in the Y. M. C. A. building. During the interim between leaving
the University in June 1912 to the beginning of my first term in
Waukesha I was under strict orders not to do any studying.

I first met Dr. Roberts at the home of Mr. S. B. Mills, a brother
of Miss Bianica, at a party there about Feb. 1, 1913. We got into
conversation. I told him I substituted for three weeks over in the
high school for one of the teachers who was absent and I had to
teach agriculture and as I had no preparation I had to do consid-
erable studying. The impression came to me that I might get some
information from him. He picked up a book that was there that
he had gotten out and which contained a number of pictures of
cattle and showed it to me and said that if I wished a copy of
that book he would be very glad to give it to me, which he did later.

GRACE A. LUSK. 345

May 28.

Our next meeting was when he came to the Mills' house with his
auto and took several of us for a ride. I sat with him. Jokingly
he said that his wife was away, he was for once in his life having
a chance to take out people that he liked. Asked me why I was
not married. A little later he took us out again. He said then that
he was going to drive to Minneapolis because his wife was there
and he was going to bring her back and he wished that some of us
would go up with him. I said I would like to go up if a party was
going up because I had friends in St. Paul. Some time after that
he telephoned if I would call at his office that he might consult with
me about a text book that he thought of getting out. I said I had
had no training along that line but if I could be of any assistance
I would be very glad to do it; asked him to come to my office at
the Y. M. C. A. building.

He came shortly after, showed me a book on cattle and said he
was going to get one out like it. I told him I thought there would
be a good field for a book of the kind, the very thing that would be
going on the supplementary shelves in the rural school. He said
if I would help him he would bring over the manuscript he had
and let me look at it. That was in Nov. 1914. In about a week he
brought over part of it typewritten for me to look over. I made a
suggestion that it would be an excellent thing to put in colored
plates because of my experience at that time when I was trying to
teach about cattle and did not know anything of them. He asked
me how I liked Waukesha and I said that I had never had any
work that I found so interesting but I did not have the pleasant
social life I had in Milwaukee and Madison. Where I was staying
they objected to card-playing; Miss Mills wasn't very fond of good
times, so I was a little lonely. I missed the jovial crowd in Mil-
waukee; he said he could appreciate what that meant. He did not
have much liberty as to bringing any of his friends home; his wife
objected to his enjoying himself the way that he would like to.

I looked over the mss., made some corrections and suggestions;
its English and punctuation were very bad. Then he revised it
and sent it to me. Just before Christmas I told him of a Christmas
tree I had got up for the children. He said that he wished that
he had children in his home, because then Christmas would be
happier there than it would otherwise. Christmas eve he tele-
phoned to the house that he was going out to his farm in his
automobile to take some presents out there and asked me if I would
like to ride out with him, that his wife was at the entertainment
at the Baptist church and he hated to go out alone. I was a little
lonely and I said I would go with him. On our ride we talked about
giving Christmas gifts: I said that for the first time I had stopped
giving gifts to any but my personal friends. He said he thought
promiscuous gift making was rather foolish. He said he enjoyed
giving gifts to his employes; he was glad he was so prosperous and
able to do so much for others. I said it must be very nice to be

346 XIV. AMERICAN STATE TRIALS.

prosperous, that I never experienced that state. He said that if he
did have money he didn't have all the things that a man usually
cared for; that his home was not happy because it was a home
where there was no affection.

During January and February he came to my office very often
about the book and other work I was doing for him. I recast sev-
eral of his magazine articles. Now there was a decided change in
both of our attitudes. We started in simply as acquaintances and
a decided friendship had sprung up between us. His wife was men-
tioned several times. He said they were not especially congenial
and that after a short period of married life they had discovered
that they had little in common and that they had been getting along
as best they could on that basis. In these months we went riding
in the country very often. One day early in March I was seated
at my desk looking at some of this manuscript and he leaned over
and kissed me. I stood up and I said he ought not to do that and
then I think we kissed each other. He said that he had come to
care for me. I told him that he must remember that he was mar-
ried. He said again that there was no love in their home and that
his wife did not care for him and he did not care for her.

One evening in his office he said that the first time he saw me he
had been attracted by me and he wished that he could know me
well; that I was quiet and well bred and had nice sort of friends
and that was the sort of woman that he admired; that he did not
like sporty women. Then he said he wished I would study ste-
nography so that he could have me for his private secretary. I said
that would be rather foolish sort of thing for me to do with my
rather expensive education to give that up and go back and take
up another trade. I asked him jokingly how much he paid his
stenographer, he said something about fifty dollars and I said don't
you know that I am getting $100 now a month? I said it would
be a poor money proposition for me and we rather joked about that
sort of thing.

During this time we rode out together a great deal and talked
over the phone every day. He told me on a number of occasions
that in their home life there was no happiness, there was no love
on the part of either of them, that it had been a great grief to him
that there were no children, because he was exceedingly fond of
them. That his wife did not care for children.

It was then I began to love him. He said that he would like
to be free but he could not be such in the eyes of the law. My
wife is a model wife and I would have no grounds to ask for my
freedom. The first week in May I was going down to Chicago to
visit a friend and he said that he was going down at the same
time and suggested that he meet me there. We could talk together
and be together and that would be all. The rest would depend
upon me. I met him in the parlor of the Hotel Sherman. He said
he was staying at the Grand Pacific and he asked me to go there
and take a room; that he had some of the manuscript with him,
we could look it over in the evening. I went over to the Grand

GRACE A. LUSK. 347

Pacific in the afternoon and registered and he came into the room
between 4 and 5. We went to dinner at the Boston Oyster House
and then back to my room. He told me that he cared for me a
great deal, kissed me a great many times — he left about ten or
eleven.

I paid my own railroad fare and hotel bill; he offered me money
which I refused. After we got home he bought a new car, espe-
cially for me he said. He was constantly telling me he had no
love for his wife and that I was the type of woman he cared for.
I said that I could never consent until I was sure that I loved him
and until he could tell me that I was the only one he cared for.
He told me I was the only woman in the world that he loved, that
all of his love was for me and for me alone. I spent the summer
at St. Paul and other places with friends. On the way I met Dr.
Roberts in Milwaukee and together we went down to Chicago on
the same train.

We wrote often but I have destroyed his letters. I had promised
him that I would destroy every letter that he wrote me. He had
promised me that he would do the same with my letters. He paid
my expenses to St. Paul. I met him at Chicago on my way home
at my room at the Grand Pacific. After I got home he gave me
money frequently and told me what he wanted me to get. I bought
a wrist watch. He told me that he would like to get jewelry but
I did not care very much for jewelry so I never got it.

After school opened in September, 1915, we rode out together a
good deal and took trips to Chicago about once a month. I always
used my own name except the latter two or three times when we
would register together, then he did the registering.

He was away on business trips as far as Seattle once on my
Chicago trips; the first two times that I went down I paid my own
expenses. I would not accept any money from him at all. After
that he always gave me money with the understanding that it was
to pay my railroad fare and pay my hotel bills and if I went out
for any extra shopping.

In the summer of 1916 I gave a course at the Bradley School in
Peoria. From there went to Chicago where I met Dr. Roberts. I
was on my way with a girl friend to Canada. I needed the rest
and he said I could stay some place near by and rest. He did not
want me to go so far away. I went with my friend Miss Edwards
to Toronto and the Muskoka Lakes; returned home the latter part
of August; a week later the Doctor and I went to Chicago to the
Hotel Sherman. He was very cross and jealous and scolded me for
being away so long. He would always ask me to tell everything
that I had done while I was away from home, with whom I had
lunch and when I went shopping, where I went, if I went out. to
dinner at the home of any of my friends I had to give the personnel
of the party. If there were any men in the party there was a dis-
agreeable time.

During the year 1916 he talked a great deal about separating
from his wife. He said that he did not think that the situation

348 XIV. AMERICAN STATE TRIALS.

was right, because in their home there was no affection and be-
tween myself and himself there was so much that he felt it would
be better to be honest about things. Later I recalled that con-
versation to him because the situation was becoming intolerable
and he said that some time the situation would work out differently.
One time Dr. Roberts and I had planned to go out in the evening.
He called me up and said he would not be able to go that evening
because they had been invited to a party and he would have to go
and I said I did not want him to go if he could not take me. He
did not go. I told him that if he went that I should write to Mrs.
Roberts and tell her the situation.

In February 1917 we went to Chicago for two days, stopped at
the Hotel Morrison; again in March to the Hotel Brevoort and in
April to Milwaukee, the Hotel Wisconsin, where we stayed all night.
I don't recall any other meeting until the one at the County Line.
I asked him if he had been telling me the truth about their not
caring for one another; instead of answering me frankly he avoided
the subject. I said the situation had become unbearable, that if
Mrs. Roberts was so unhappy and I was so unhappy something
would have to be done to relieve the situation; that if he did not
care for me, if it was I who was the superfluous one, if he told
me this that would be the end of it and he said that he cared for
me just as much as he ever did. I said you must tell Mrs. Roberts
because this situation cannot go on any longer. It is unfair to
both of us. If she understood the situation she would be perfectly
fair about it. I also asked him finally what he would do. He
said he had some plan if I would only wait. I asked him what it
was and he said that he could not explain it to me. Finally I said
you must promise me this one thing, that you will go home and tell
this situation to Mrs. Roberts so that it can be cleared up. He said
it was impossible for him to do so. I think it was then that I
struck him. I did not see him for quite a long while after that.
I did not call him up and neither did he call me up for some time.

After the County Line meeting I begun to feel that he was not
meeting the situation as I understood he would. It affected my
whole mental outlook. I never slept at night it seemed after that.

We had another meeting at the Hotel Wisconsin about June 1st.
He told me that he was going East and I asked him if he would
meet me the next day at the hotel Wisconsin because I had some
things I wanted to say to him. After supper he went down to
change the parking of his car and I took a letter that I had in my
pocket that I had written to Mrs. Roberts and I went out into the
hall and dropped it into the mail chute. Then I came back into
the room and I took my revolver which I had in my bag and I put
it into the drawer of the writing desk. I had decided that this
situation had to be straightened up and if Dr. Roberts did not care
for me and was not ready to be fair and straightforward with both
of us women that I would take my life. When he came back I told
him I never would have allowed this thing to start if he had not
assured me that Mrs. Roberts did not care for him and he did not

GRACE A. LVSK. 349

care for her. I had been compromised hopelessly. My reputation
was gone, my life was marred because I had always been straight-
forward before. I said that if this had been a game on his part
and I had been so simple as not to understand him that I could
face the consequences and he took me in his arms and assured me
that if at the beginning of this affair he cared for me, he now cared
for me ten thousand times as much and if I would only wait every-
thing would come out all right; but I said it could not go on any
longer, and I asked him if he would not go home and tell the whole
story to his wife, Mrs. Roberts. He said it was impossible. I took
out the revolver, told him to step back that I was in earnest about
this, that his game had gone far enough. I told him to place his
left hand on the bible and raise his other hand and swear that he
would go home that night and tell Mrs. Roberts the truth and he
said I can't tell it now because I am on the eve of this business trip.
I said that I would give him until the 15th of June to do this and
he said that he would do it before then. I said I want you to ask
her for your freedom and he said, "Do you think that will help
things if I tell her first?" and I said "I want you to arrange this
so that we are all going to understand each other" and he promised
me that he would do this. I went over to him and I put my arms
around his neck and I said that he did not need to do it unless
he wanted to and he said "yes it is better to be honest about the
whole affair." Then I told him about this letter that I had mailed
to Mrs. Roberts and told him to intercept it in the morning.

Just after the County Line meeting I made my will. I realized
for the first time that Dr. Roberts and I had had this love affair
with entirely different points of view. I had been sincere, I had
given to him the things that a woman gives to a man that she
loves and on Dr. Roberts' part it was a game. I had lost my repu-
tation and with it went my usefulness and I did not want to live
any longer. There was no place in the world for me. After he
went away a dear letter came from a friend in California, urging
me to come at any time and spend the summer. I thought if I
could be with her I could gain my poise and find an opening where
I could teach and get away from this environment and everything
would come out all right. After that in talking to the Doctor he
was so sincere and earnest that I wanted to have another talk with
him when I could determine definitely what his attitude was. That
was why I requested that meeting at the hotel Wisconsin and
that was why I went prepared for either thing that might happen.

After his promise in Milwaukee, I determined to live; to go to
California, to get into new environments and to get back into a
cheerful state of mind. I had made my reservation on the train
for the Tuesday after the tragedy. At the Hotel Wisconsin he had
told me that he was going away but would be back by the 20th of
June. He did not return until the 21st. That evening I called up
the office and asked him if he had kept his promise and told Mrs.
Roberts those things which he promised to tell her in Milwaukee

350 XIY. AMEBIC AN STATE TRIALS.

and he said no. I said that I wanted to see him that night and
he said he could not see me the next day, he was too busy. I said
he would have to or I would see that some steps were taken and
that I would ask Mr. Lockney about it, what he could do for me
and he said do you know what it means to make a threat over
the phone and I hung up the receiver.

Then I went over to his house. He came to the door. I asked
him when he was going to tell his wife and he said, what do you
expect to gain by this Miss Lusk? I said Miss Lusk and he said
Grace. Then Mrs. Roberts stepped out and she said was that you
that called up on the telephone this evening? and I said yes. She
said I thought I recognized your voice. Won't you come in? and
I said no, I just want to speak to Dr. Roberts for a moment. I
asked him to walk over home with me, so he went in and got his
hat and we started home together. While walking towards home
he asked me Have you your gun with you? and I said, no. He
said, Have you destroyed the letters which I gave you and I said
that I had. I lied to him because I had kept two or three. Then
I asked him why he had not written to me while he was away,
because he always had before and he said because I have not felt
sure that you were destroying my letters. I assured him that I
had. I lied to him twice. I said if you do not care for me if
you will say so now this will be the end of it; he said he loved
me. Then I said if you do love me you have got to be honest
about this, you must go home tonight and you must tell Mrs.
Roberts and you must ask her for your freedom because the whole
situation is so wrong and he said that he would do so. Then I
asked him to kiss me. He said I can't kiss you, my mouth feels
as if it were full of poison, but he did and then he went home.

When I got home Mrs. Roberts called me up; said she wanted
to see me next day, and next morning she asked if she should
come to my house and I replied I would prefer my office, but she
did not come though I saw her with her husband in the hall. I
went home at noon and wrote that letter to her. After dinner I
went to the dressmaker's. When I returned I called up Dr. Roberts
and asked him if he had told Mrs. Roberts what he had agreed
to tell her the night before and he said, yes. Then I said "What
did she say?" He said "Well, she said a great many things."
Just at this point the door opened and Mrs. Roberts came in.
Mrs. Roberts said "I have come to get an explanation of your con-
duct last night. I think it was the most asinine performance I
ever heard of. My husband said that you were the damnedest
fool that he had ever known. You have chased him until he has
not known what to do with himself." Then she commenced to
abuse me and she ridiculed my personal appearance. She said she
did not think much of his taste in picking out a scrawny old maid.
Then she commenced ridiculing my friends.

Then she asked me if I had been intimate with Dr. Roberts. I
said that was a question that she would have to ask her husband.

GRACE A. LUSK. 351

Then she said that I would have to get out of town, that she could
go to the school-board and tell them about me and I would have
to leave. I said you must not do that Mrs. Roberts because I have
to earn my living. She said well, my friends will put you out of
town, they will tar and feather you. I said what will they do
to Dr. Roberts? She said that is a different matter. Then she
said, I suppose the trouble with you is that you are in a family
way and we will have to deal with that. She said don't you know
how, she mentioned the name of a young woman we both knew,
don't you know how this young woman died? I said, no, I did not
know about her, and she said, Well, she died in the third story in
a little room of a second class boarding-house as the result of an
abortion after she had been too friendly with my husband. You
will die that way too, but it won't be in Waukesha. Then she
said Dr. Roberts never cared for you, he has just been making
sport of you the way he has with other women. I said he has
really cared for me. She said have you anything to prove that
he has cared for you? I said I have some letters upstairs. I went
upstairs for his letters intending then to kill myself. I brought
them and my revolver down; she said she could not read them
as she did not have her glasses, but when she saw his typewritten
itinerary in one of them she said he must come and explain this.
She went to the phone and said to her husband "I want you to
come up immediately to Miss Mills' residence and hung up the
receiver. Then she hurled some and said some obscene things and
then I don't remember what happened after that.

I intended to kill myself, I never had a thought of taking her
life never, never, never! The next I remember was being in my
room. I recall writing something and trying to get the revolver
to work; don't remember shooting myself. Then remember talk-
ing to Dr. Davis at the head of the stairs. I would not let him
come up because I wanted to die. I asked him if my wound was
fatal and to write some messages for me. I asked him to go away
two or three times so that I could shoot myself. I tried and then
my nerves would leave me, then I would have to try again. Finally
I did put the second bullet through my body. The men came
upstairs. I thought that I was dying and they carried me away.
That first day and first night I wanted to die but my father came
and he wanted me to live.

The last things I remember Mrs. Roberts saying to me were
that I was nothing but an old bitch, running around town looking
for a bull dog; that I was a low-lived whore.

CROSS EXAMINATION BY ME. CORRIGAN.

Miss Lusk. I did not shoot Mrs. Roberts because I was angry or
because she called me names; I wrote this letter to Miss Winans
the morning of the tragedy but did not mail it.

Mr. Corrigan read the letter (extracts) :

352 XIY. AMERICAN STATE TRIALS.

"I received a letter from 'tother Winifred,' who is very urgent
about my going to California. Father does not seem very enthusi-
astic about my going. He thinks I had better go where I can rest
and rest and rest. Also he thinks I am pretty much of a spender.
Of course you have bought Lib. bonds. I am also supporting a
Belgian orphan and assisting on a French one. Am holding my
breath for Red-cross week. I am not in a mood to write a decent
letter. I feel like a lone, lorn lil puppy that wants some one to pet
it and whom he could fuss joyfully over. Take care of yourself my
dear girl, be happy in your garden bux don't take it too seriously.
Give my regards to Mabel and here are heaps for you. Affection-
ately, Grace."

This letter to Miss Edwards I wrote a week before but had not
mailed either.

Mr. Corrigan read it (extracts) :

"Dear Ida: When I try to do real stylish typewriting the very
devil itself gets into my machine. Otherwise my work is perfect.
Anyway I feel that I need a rest. Aren't exams the evil one's own
invention.

What do you suppose my latest bug is? Nothing less than a
trip to California, main objective point, Santa Barbara, where my
Winifred lives at. I am not going to take a fancy tour — just out
there and back. This plan is subject to amendments maybe to an-
nihilation but it is the latest thing in plans. I am so thankful
that I am not going to teach this summer. I am so tired now that
the thought of work is not pleasing in my sight. Next week I am
going to give my clothes the 'once over,' see the dentist man and
SLEEP, SLEEP, SLEEP. Gee, I feel like taking a regular R. V. W.

nap. We had a of a thunder storm last night, every one sat

up to see it through. Consequently many sleepy heads today. I am
going to buy a Liberty Bond. I may have to sell it by Fall. But
I hope not. Then too I am going to adopt a Belgian baby. Th^y
cost a dollar a month. I would take a French one but they come
higher."

I enclosed my letters to Dr. Roberts in ones to Miss Blodgett
because he told me to do that always; for the purpose of secrecy
so that our relations could be carried on without discovery.

I wanted Dr. Roberts to tell his wife of our relations so that
she could step out if she desired to. If she did not care for him and
he did not care for her that seemed the logical conclusion. She
had never listened when he tried to explain to her what the situ-
ation was, according to the stories that he had told me. As soon
as he would try to explain she would lose her temper and frighten
him and I thought if he stood firm and told her the whole story
that she could be reasonable because I thought that she did not
care for him. I thought if she had made her decision the thing
would be settled if she saw the thing as it was and she wanted to
continue it, then I would step out; things could not go on as it
was for any longer.

GRACE A. LUSK. 353

At the Wisconsin Hotel I had mailed my letter to his wife before
he went out to park his car. I wrote it here.

Mr. Corrigan here questioned the prisoner very closely as to the
meaning of expressions in her letters to Mrs. Roberts. Among the
explanations she made are the following:

Miss Lush. "When I wrote "With me I have always felt that our
only sin was the underhandedness of it all" I meant that the sin
was not in having the relations with the doctor but in not making
the fact known to the wife, the whole situation clear and clean.

When I wrote "that is the way you so-called good, moral women
do things" I meant women who had been facing the issues of life
squarely and frankly.

When I wrote "parasitic" I meant women who live lives of ease
and who have done nothing for society — the so-called good moral
women, whose morals is more of the negative sort. In this one
respect she was taking her place in that class. I was using the
word as it is used in sociology today, and not in the biological
sense. It means one who has not been productive to the good of
society — a hanger-on.

When I wrote "I am asking then why he does not ask you for
his freedom" I wanted him to tell her the situation; freedom from
the marriage relation might result from that. If they did not care
for one another it would make the way open for all three of us,
and a subsequent marriage between me and the doctor, if that was
what the doctor and his wife agreed upon; the choice was to be
between them. I meant by the Eternal Triangle that there were
three parties to it.

May 25.

When I drew the pistol on him at the Hotel I did not intend to
shoot him for I knew he would promise what I asked.

This is the review I wrote of Helen Keyes' book on Love and
Marriage. Yes, I said in that review: "But the frankness and dig-
nity of her love and marriage has made it one of the epoch-making
books of this generation." "We feel that we are in the inspiring
presence of a woman whose personality is one of the chief moral
forces of our time. The first chapter in her book deals with the
development of sexual morality. She traces the development of
monogamy and shows how under ideal circumstances it is an ideal
solution of the problem." This is Ellen Keyes' book and I am
giving a summary of it and what she did are not my opinions and
I refuse to have this all attributed to me. Ellen Keyes is a much
greater woman than I.

Yes I wrote: "I again and again contend that real fidelity can
only exist when love and marriage become equivalent terms. The
chapter on the evolution of love is rather stimulated. But when
sensuousness — in alliance with the mission of the race — regains
its ancient dignity then the power of giving erotic rapture will not
be the monopoly of him who is inhuman in his love. The wise
virgins' deadly sin against love is that they disdained to learn of

354 XIV. AMERICAN STATE TRIALS.

the foolish ones the secret of fascination; that they would know-
none of the thousand things that bind a man's senses or lay hold
on his soul; that they regarded the power to please as equivalent
to the power to betray. When all women who can love are also
able to make goodness fascinating and completeness of personality
intoxicating, then Imogen will conquer Cleopatra."

The thesis of love's freedom is contained in this extract: "When
two lovers have that desire and have reached that maturity, when
the will has a right to realization and is in full agreement with
the health and beauty of themselves of the new generation and of
society it is right that they should come together even though it
may not be possible for their pure desire of common life and com-
mon work to take the form of marriage." Probably one of the
most discussed passages in the book is this. The ideas promulgated
in the chapter on free divorce are going to shock you especially
if you are ultra unconventional and stereotyped in your thought.
But remember that Ellen Keye's articles in the Atlantic Monthly,
Harpers and the leading European periodicals are eagerly sought
— not for their sensationalism — her name is not even known by the
masses, but because she has something worth the saying — she is
an extremist? Perhaps so, but she hates hypocricy and cant; she
can't tolerate a hidden sin. Our old morality which condoned con-
ditions that every one knows to exist, men unfaithful to their wives,
wives unfaithful to their husbands — providing these affairs can be
comfortably quiet. The new morality faces things frankly. It
doesn't call all flowers blue because blue is a nice color."

Mr. Clancy. Would you like to explain the writing of that re-
view?

Yes. A friend told me she had to write a review of Ellen Keye's
book, "Love and Marriage," and she says, "I have read it and read
it and I can't make head or tail out of it and I am too busy to
spend any more time on it." I said, "If you want me to I will see
what I can do with it." So I took the book and went through
some parts of it. I did not read it all but gave in a condensed form
the things that I thought Ellen Key was trying to put forth.

Dr. A. P. Lusk. Am 65. My Br. Herbert W. Powers. Am a
wife, on our wedding trip at Ni- graduate of the Medical Depart-
agara Falls in 1874 suddenly be- ment of the University of Mi-
came insane and tried to jump nois; have practiced 16 years in
into the river. I grabbed her Chicago and Milwaukee; have
just in time. A casual remark had much experience in mental
of mine which I do not recall and nervous diseases,
was the cause.

Mr. Clancy here read an hypothetical case embracing what had
been testified to by the witness ; also including the letters and other
evidence which was listened to by the different physicians in the
court room. The "case" was agreed to by counsel on both sides.
It is in a condensed form found in the Narrative, ante p. 316.

GRACE A. LUSK.

355

Mr. Clancy. Assuming these
facts to be true was Grace Lusk
in your opinion of sufficient
mental capacity to know the
difference between right and
wrong? Dr. Powers. She was
not. She was suffering from a
form of mental disease of such
an extent and to such a degree
as to produce insanity. I think
she was suffering from a disease
known as parenoia. (The wit-
ness gave his reasons at length.)

May 27.

Mr. Clancy. From the evi-
dence as to her ancestors do you
think her condition was hered-
itary? Yes.

Cross-examined. In giving my
opinion I assumed that Miss
Lusk was unconscious at the
time. People may suffer from
headaches and from neuritis and
yet be sane.

Mr. Corrigan. In view of the answers of this last witness, the
state moves for an inquisition at this time of the present sanity or
insanity of the defendant under the statute.

The Court. Well, gentlemen of the jury you will please step
into the other room. (The jury retires to the juryroom.)

The Court. The application is denied. I am not convinced that
theimental condition of the defendant now is such or has been such,
that she is not able to proceed with the trial.

Br. William F. Becker. I
heard the hypothetical case
r«ad. Am a graduate of Co-
lumbia Medical College; have
practiced since 1882 in Milwau-
kee and for 25 years have de-
voted myself to nervous and
mental diseases; my opinion ac-
cords with that of Dr. Powers.
(The witness gives his reasons
at length.)

Cross-examined. My opinion
is not altered by what she told
the witnesses at the hospital.

Dr. George 8. Love. Am a
graduate of North-western Uni-
versity Medical College; have
practiced here since 1894; am a
general practitioner; heard the
hypothetical case and agree with
Dr. Powers.

Cross-examined. The use of
epithets and bad names often
produce anger on the part of
the person to whom they are ad-
dressed, and cause and induce
notions for revenge to arise in
perfectly sane persons. If she
was conscious at the time of the
shooting of Mrs. Roberts and re-
members afterwards and re-
members now I would say that
she was responsible.

Dr. Grove Harkness. Have
practiced here for 21 years and
have treated many cases of men-
tal disease; heard the hypothet-
ical case; agree in my opinion
as to the defendant's state of
mind with Dr. Powers.

Dr. George E. Peterson testi-
fied to the same effect.

IN REBUTTAL.

Dr. Roberts (recalled). I
never at any time said anything
disrespectful concerning my
wife to Miss Lusk; nor did I

ever tell her I would divorce
her or that our relations were
unpleasant.

Dr. Frank C. Btudley. Am a

356

XIV. AMERICAN STATE TRIALS.

graduate of Columbia Medical
College; have practiced for 25
years, and am the proprietor of
a Sanitarium for mental dis-
eases in Milwaukee.

Mr. Corrigan read the State
hypothetical case founded on
the evidence adduced on the
trial. (See narrative p. 316).

Br. Studley. Assuming these
facts to be true my opinion is
that Miss Lusk "was of sufficient
mental capacity at the time of
the tragedy to know the differ-
ence between right and wrong.
She was not suffering from pa-
ranoia; have had cases of para-
noia, a very wide experience. A
disposition to commit suicide is
rather uncommon, the homicidal
impulses but not the suicidal.

Cross-examined. Dr. Lusk's
actions as described are signifi-
cant of nervous instability —
that he was therefore insane, I
would say, no, I should say that
his mind was free from disease
but not from peculiarities and
oddities. The act of suicide is
perfectly consistent with a sound
mind and it is frequently a very
sane act; it is widely within the
limits of the normal action of
the mind, but not by any man-
ner of means does a person who
commits suicide suffer from in-
sanity at the time of the act.
As a general proposition suicide
on the part of a sane person is
vastly more infrequent than its
occurrence in the insane. It is

frequently the case that the in-
sane will have descendants who
are perfectly sane. I would con-
clude in the presence of such a
person that the ancestry had a
very strong bearing upon the
production of this condition if
he or she were insane but I
would not expect that insane an-
cestry necessarily are going to
produce insanity in the children
or grandchildren. The type of
headache that she described was
not that of migraine and that is
one form of headache that I
would state as of degenerate
origin. The headaches she was
describing here, where she spoke
of the pain up over her eyes and
at the back of her head, taken
in addition to the fact that she
wears glasses, impresses me as
more likely that they were due
to astigmatism or some trouble
with the eyes which the eye-
glasses corrected.

Dr. William F. Wegge. Have
practiced in Milwaukee since
1886; have had experience in in-
sanity cases, heard the hypo-
thetical case read. I think Miss
Lusk had the capacity of dis-
tinguishing between right and
wrong at the time. She was not
suffering at that time from para-
noia. The disposition to commit
suicide does not often accom-
pany paranoia. The tendency is
towards homicide. It is not ac-
companied by trancelike stages.

THE SPEECHES TO THE JURY.

MR. TULLAR FOR THE STATE.

May 28.

Mr. Tullar. Gentlemen : The functions of the government
are the lawmaking bodies and the judicial bodies, so far as we

GRACE A. LUSK. 357

need to consider govermental functions in this case. The
laws upon our statute books, are the laws to be considered
in this case. In the grand old state of Wisconsin we have
the best laws for the enforcement of rights and duties that
there are in the world today.

You gentlemen are a part of the government. The jury
sitting here as the judges of the facts in this case, together
with His Honor on the bench, and the prosecuting attorneys
presenting the facts, constitute the government officials in the
trial of this case. We stand together, sworn to do our whole
duty, and to be fair and just in the prosecution of this case.
You have each sworn to do your full duty in this case, and
to be fair and upright in the performance of that duty. We
know you will do that, gentlemen. That His Honor on the
bench has sworn to do, and the prosecuting attorney has
sworn to do, and we are all here to do our complete duty
so far as we know it, and to do right and justice, and to be
fair toward the actors in this case — not only fair, gentlemen
of the jury, to Grace Lusk, but fair to the state of Wis-
consin and to the people of the state we all represent here.
That is the idea of fairness and of justice which we all ac-
cept as proper and right in this case.

The laws that we have to apply in this case are what are
known as written laws. His Honor will give you those laws,
which are to govern you in your decision upon the facts. You
are the sole judges of the facts in this case, and your verdict
cannot be gainsaid by any person, but you are to take the
law from the Court and not from the attorneys. These
written laws have come down to us from a very ancient time.
The first written laws that we have any knowledge of were
the God-given laws to Moses on Mt. Sinai when he recorded
upon the tablet of stone the laws which were given him by the
Great Jehovah; and the peculiar thing occurs here that two
of those laws at least — are involved in the consideration of
this case. They are still upon our statute books in modern
style and form, comporting with the improved conditions
of our age; and are as follows:

358 XIV. AMERICAN STATE TRIALS.

' ' Thou shalt not covet thy neighbor 's house. ' ' And ' ' Thou
shalt not kill."

Those Commandments which have been recognized from
the time of the earliest civilization are still Commandments,
are still the written laws of this state.

The information charges as follows : That on the 21st day
of June 1917, Grace Lusk did wilfully, feloniously and of
her malice aforethought kill and murder Mary Newman
Eoberts.

To this charge the defendant has entered a plea of Not
Guilty, together with a plea that she was insane at the time
she committed the offense. There we have the issues in this
case, which are to be determined by your verdict.

It is incumbent upon the state to prove all the facts that
it alleges in this Information to your satisfaction and beyond
a reasonable doubt. One thing charged in that Information
is the killing of Mary Newman Roberts. That fact has been
established over and over by the witnesses for the prosecu-
tion. With what intent did she kill her, is the only question
that is left in this case. Intent is something intangible that
exists in the mind and can only be brought to the attention
of the Court and the jury by the acts themselves. By proof
of the acts we are to establish, and ascertain what the intent
was. Grace Lusk has testified here before you that she was
not angry when she killed Mary Newman Roberts. It was not
done in the heat of passion. But she said she was uncon-
scious at the time, and that brings us to the only issue that
you will have any trouble with at all, and I do not be-
lieve you will have much trouble with that when you have
heard the instructions of the Court on the question of whether
or not she was insane, whether she was capable of distinguish-
ing between right and wrong at the time she shot and killed
Mary Newman Roberts.

The Court will instruct you, that there is a presumption
in law that Grace Lusk was sane at the time. That can only
be overcome by proof which satisfies you of her insanity, or

GRACE A. LUSK. 359

at least raises a reasonable doubt in your minds as to whether
she is sane or insane.

Grace Lusk shot twice. The State contends it was the last
shot that killed Mary Newman Roberts. The second shot
establishes the fact that she intended to kill her. The first
shot was given near where the telephone stand is, where Mrs.
Roberts had just telephoned to her husband. There blood
was found upon the floor. Mrs. Roberts retreated from that
place about twenty to twenty-five feet over into the corner
where her body lay. She undoubtedly staggered against that
casing of the wide folding door, and left a large bloodstain
upon the door jamb, as testified in the evidence and as shown
by photographs. The first shot, as we claim, entering between
the seventh and eighth ribs and lodged below the scapula
or shoulder blade, was a fatal shot, passing through the dif-
ferent organs, as the doctors have described to you, but not
immediately fatal. But the second shot, as we claim, and as
I think this testimony shows beyond any reasonable doubt,
was fatal. Grace Lusk pursued and kept shooting Mrs.
Roberts until she fell. That shows the intent with which she
made that attack upon Mrs. Roberts. It shows that she in-
tended to kill her. The Court will instruct you that that in-
tent to kill need not necessarily exist for any considerable
length of time before the act itself is committed. Mo-
mentary intent is sufficient.

Mrs. Roberts came to that house to see Grace Lusk. She
wanted to find out about the rumor; about what had been
going on between Grace Lusk and her husband. Who had a
better right to investigate that than Mary Newman Roberts?
It is claimed that because of the language which she used
toward Grace Lusk on that occasion, she became unconscious
and killed her. I haven't any doubt that Mrs. Roberts said
some plain, scorching things to Grace Lusk. Grace Lusk had
all this coming to her, and she got perhaps a part of what she
deserved at the hands of Mrs. Roberts. I think Mrs. Roberts
was capable of telling facts in a plain and unmistakable
manner ; and I think perhaps she did it on this occasion.

360 XIY. AMERICAN STATE TRIALS,

His Honor will instruct you, as I believe, that no amount
of personal language, no amount of language or abuse used
by Mrs. Roberts toward Grace Lusk would excuse or justify
her in shooting her. It is a familiar principle of law that
you cannot repel what we call a verbal assault by actual
assault. A man cannot enforce the law in his own case.

I have seen some good actresses in my time; but I have
never seen Maud Adams or anyone else equal that which I
have seen in this court room during this trial. Ten months
only of preparation for it, but Grace Lusk is perfect. She
tells you that she went upstairs to get some of Dr. Roberts'
letters to show Mrs. Roberts to establish to her that Dr.
Roberts had been untrue to her; that she got those letters
and took them downstairs to Mrs. Roberts; that in doing so
she saw her pistol which she slipped into her dress pocket for
the purpose, as she said, of taking her own life. Now, that
sounds well, but let us see if the cicumstances bear out its
truth. Previous to the shooting, she went upstairs and got
that pistol. While she was upstairs, Mrs. Roberts called up
her husband and asked him to come over to the Mills' house,
and was still at the telephone when Grace Lusk appeared.
Did she bring down Dr. Roberts' letters? No, gentlemen of
the jury. It is in evidence here before you from the district
attorney himself that he found those identical letters written
by Dr. Roberts, in the bottom of a drawer, covered over with
pencils, keys and other drawer bric-a-brac, accumulations of
time, which had covered over these letters from the time
they were deposited there. There was no blood upon them.
They were in the envelopes, as they were offered in court here,
and found by the district attorney. Consequently, Grace
Lusk did not take those letters when she went down to Mrs.
Roberts with the gun in her hand. Those letters were in that
drawer where they had been for weeks, and perhaps months,
untouched and unopened. Then why did she go upstairs?
She didn't take anything else down but the gun. That she
had concealed in her pocket. There is no question about her

GRACE A. LUSK. 36

taking the gun. Did she know, when she went upstairs, that
she was going to shoot that gun ?

The court will instruct you, gentlemen, that in considering
the testimony given by the different witnesses upon this stand,
you must take into consideration the interest, if any, they
have, or either of them have, in this case. Grace Lusk is
more interested than any person in this case at this time,
and her interest is such, with her life and her freedom at
stake, that cannot be measured by any other interest or any
other factor in this entire case. She is more than interested.

She went downstairs with that gun for a purpose ; and she
put that purpose into effect. Mrs. Roberts had not as yet
left the telephone. She was shot the first time by Grace
Lusk upon coming down those stairs. One cartridge, an ex-
ploded cartridge, was found on the cent ert able in that room,
she had to pass that centertable. And we all know the opera-
tion of an automatic pistol ; it ejects the cartridges at the time
of the explosion or reloading. One cartridge was upon the
centertable that Grace Lusk must have had to come near or
pass as she approached Mrs. Roberts. She shot her in the
right side, as Mrs. Roberts' glasses were found near that place.
Blood is found on that floor — not much, but a few drops,
which, as the coroner and the district attorney and at least
one other witness told you, were fresh blood marks at that
time. Mrs. Roberts, feeling the impact of this horrible bullet
that had passed entirely through her, started to escape. She
ran into the open place where you find her. She staggered
against the side of that door- jamb of the large folding door.
The right side of her person would come in contact with the
right hand post. As she passed through the door that was at
her right hand, and as she staggered against that door, the
blood from the wound in her right side came in contact with
the door post. She went as far as she could get, over into the
southeast corner of the parlor. There she had to turn. There
was no further retreat for her. She turned to find some other
mode of escape, and she faced this unerring gun and this ex-
pert shot in doing so. The next shot cut the great aorta one

362 XIV. AMERICAN STATE TRIALS.

inch above the heart, went in from one side and came out the
other. Dr. Davies, Dr. Murphy, and other doctors have testi-
fied here, that with that shot Mrs. Eoberts must have
dropped. Why? The great aorta was punctured twice by
a 25 caliber bullet. The blood pressure which is necessary
to carry the blood from the heart to the brain was relieved.
Did you gentlemen ever try to pump up an automobile tube
that had been punctured? How far did you get with it?
There is a good illustration of the pumping by the heart of
blood to the brain. The punctured aorta would not permit
of any pressure sufficient to carry the blood to the brain ; con-
sequently the brain became inactive instantly, and she col-
lapsed. Grace Lusk had pursued her for this distance of
twenty or twenty -five feet, and gave her the final shot and as
it appears to us she would have continued to shoot until Mrs.
Roberts dropped. Upon seeing her fall, what did Grace
Lusk do? Sit down and cry? No. She immediately went
upstairs. She had accomplished all that she could accom-
plish. She had fired upon her twice and she had fallen the
second time. What is in the mind of the person who com-
mits such a crime at that ? Why, to escape ; to get away from
the seat of it. She knew that she had committed an awful
crime, and she fled upstairs. She had no sooner gotten up-
stairs than she saw Dr. Roberts drive up in his automobile.
She knew that he would come into that house and that her
crime would be discovered. What did she do? Still uncon-
scious, she says. But was she unconscious ? She immediately
starts to reload that pistol. Why ? Because, gentlemen of the
jury, she knew she had shot it. Is that unconsciousness ? Why
did she start to re-load that pistol? Because she knew she
had shot it downstairs. Now, she tells you she knows nothing
about it. In her haste and in her anxiety to re-load this
gun, she turned the clip, as we call it, the magazine which
shifts up into the handle — she turned it wrong end to; it
would not go off. Then she got to wondering whether it
would clog after her reloading it, as it had often done before,
she says. Was she unconscious when that thought came into

GRACE A. LUSK. 363

her mind that the pistol might clog? Is that an unconscious
act on her part? Or, was she conscious? Did she remember
it having clogged before ? She fired that gun v out of the
screened window, to see if it had clogged. When this shot
was fired Dr. Roberts had called Mr. Block into the house;
they had discovered Mrs. Roberts lying upon that floor ; they
had left the house to telephone. She saw them leave the
house, knew that she would be detected, and that the awful
crime that she had committed would be discovered. She
saw that she was caught, and did what many people have
done under like circumstances, tried to cheat the law of its
penalty. She fired one shot through this screened window
to see if the gun was working properly, and then, standing
before her mirror, with her hand on her breast, she fired
into her person to penetrate her heart, firing through the
tip of her little finger in doing so. Grace Lusk claims this
shot brought her to consciousness. Now, gentlemen, she had
always supposed and was supposing at the time she felt for
that pulsation at the apex or below the apex of the heart,
that that was where the heart was.

The pulsations, as the doctors tell you, come from below the
heart. The beat, as we call it, is below the apex of the heart.
The impulse of the beat does not locate the heart. But she
supposed her heart was there. Did she have consciousness
when she reasoned that out? Was she insane, gentlemen,
when she made this effort to locate the heart? No. That
shows reasoning. And the reason for it was that she wanted
to put that bullet through her heart and cheat the law of its
penalty; and, as she says, to endeavor to get away from a
trial just as she has been put to in this case.

What does she do then ? She goes to her desk, takes a scrap
of paper and writes the paper which has been offered in
evidence and which was found in her desk covered with blood-
stains from that bleeding finger; and you know, gentlemen
of the jury, that nothing bleeds worse than the end of a
finger. She got blood all over her desk, upon this paper and
upon the floor — not from the wound she made in her breast,

364 XIV. AMERICAN STATE TRIALS.

because she had clothing enough there to take up by satura-
tion the blood coming from that wound. She claims that
the first shot into her body is what brought her to con-
sciousness. Now, had she been conscious in discovering Dr.
Roberts coming there, and in reasoning that she was caught
redhanded in loading her gun, in fussing with the clip;
putting it in right when she tried to get it in wrong; in
firing it through the window to see if it would clog as it some-
times had done before? We claim that under these cir-
cumstances Grace Lusk knew, and was acting as a perfectly
sane person when she was doing that ; that she knew she had
committed wrong in killing Mrs. Roberts when she shot into
her own body. If she were capable of distinguishing between
right and wrong at the time she shot Mrs. Roberts, then she
was not insane in the eyes of the law.

The next thing that we hear is Grace Lusk at the head of
the stairway calling for Dr. Roberts. My God, gentlemen,
think of it ! Calling for the husband of the woman she had
just murdered! Why? Because she had eliminated that
point of the triangle which was in the way ; and now she was
going to assert her alleged right to Dr. Roberts.

Mr. Block stepped into the stairway and said : ' ' There will
be someone here in a minute. ' ' He discovered Grace Lusk at
the head of the stairs with the gun, her left hand bleeding.
As Dr. Roberts started hurriedly for the Mills' home to tele-
phone for help, and Mr. Block was just behind him, they
heard a shot from the upstairs of the house, followed in a
very few seconds by another shot from the same locality.
The two shots sounded alike. There was not much of an in-
terval between them, they say. The first shot was the shot
out of the window. The second shot was the shot that Grace
Lusk inflicted upon her own person for the purpose of taking
her life and of cheating the law of its penalty and escaping
this trial. In a few moments Dr. Davies was on the scene.
He saw Dr. Roberts' car there and went to the house and Mr.
Block told him of the tragedy. He examined Mrs. Roberts
and she was then dead. Mr. Block told him: "There is

GRACE A. LUSK. 365

someone upstairs. ' ' Dr. Davies stepped into the stairway and
started up the steps when Grace Lusk put her left hand
out, with the revolver in her right and says : ' ' Stop ! Don 't
come up here," with such emphasis that he stopped. Dr.
Davies looked up. He saw a person then at the head of the
stairs, bleeding, with a gun in her right hand. He wanted
to come up to assist her in a surgical way. She said: "No.
Don't come up here." He backed out of the stairway and
stepped back into the room. He began to advance to the
stairway and tried to reason with her. "Why did you do
this?" "Because she called me such awful names." She
knew what she had done. She knew why she had done it and
she said then and there: "Because she called me such awful
names. ' ' Within the first twenty minutes, I think the doctor
said, she requested him to get a paper and note down certain
messages that she wanted to give to her friends. She still in-
sisted that she loved Dr. Roberts in that message, and
she asked Dr. Davies: "Where is Mrs. Roberts?" And he
said: "She is dead." She says: "I am so sorry, but she
called me such awful names. ' '

Gentlemen of the Jury, that shows that she knew all the
time what she had done. She knew she had done a wrong.
She knew the difference between right and wrong and she
knew that she had shot this poor defenseless woman with the
intention of killing her, and of her malice aforethought.

Then the chief of police appeared on the scene. She in-
sisted that she was going to finish the job she had started and
kill herself. She asked Dr. Davies: "Who is that you are
talking to down there ? ' ' She wanted Dr. Roberts. He says :
" It is Don McKay, the chief of police. " " Oh, " she says, ' ' I
have heard something about him." She says: "What will
they do to me?" "Take you to jail, probably," Dr. Davies
said. "No, never," she said. "Never take me to jail. " She
told the doctor to go away, she would finish the job she had
started ; and the final outcome was that he did go away after
he had written the messages as she dictated them. He
did go away out near the library table ; and then he heard the

366 XIV. AMERICAN STATE TRIALS.

second shot and then: "You may come up now," and they
went up. The second shot was just where the first shot was,
only a quarter of an inch away from it, where she still be-
lieved her heart was. She intended to shoot herself, to kill.
She intended to commit suicide and to save the trial that she
has been put through here ; in other words, as used to be
said when capital punishment was in vogue, to "cheat the
gallows." We have no gallows in this state; so to "cheat
the law ' ' is the better expression in Wisconsin.

Finally she fired that second shot, which conclusively es-
tablishes, under all circumstances and evidence in this case,
that she was sane when she fired the first shot. They claim
that she became sane after the impact of the bullet. We
claim that she was still proceeding with the same idea and
with the same intent in firing the second shot that she did
the first. The second shot into her own body establishes
the fact of her sanity all the way through.

She was taken, as soon as an ambulance could be prepared,
to the Municipal Hospital. The superintendent of that hos-
pital met her when she came in, and said to her : ' ' Why did
you do this?" "Because she called me such awful names."
Was she without reason when she did this killing of Mrs.
Boberts, after all these expressions to the chief of police,
to Mr. Eedford, or in his presence and Dr. Davies and Mae
Collins? Four or five days later she was visited at the hos-
pital by Mr. Steiner, the agent from the Department of
Justice in Milwaukee, accompanied by the district attorney,
M. S. Tullar, and by the sheriff. They all appeared before
you and have told you, gentlemen of the jury, just what was
said there on that occasion.

Mr. Steiner tells you that he asked Grace Lusk if she
knew what she was about; if she was of sound mind at the
time she did it, and she told him she was. Then the district
attorney asked her how she came to do it. She said : "I did
it because she called me such awful names. But what I can-
not realize now — what I cannot see — is how I could do is so
cooly and deliberately." These three persons have all testi-

GRACE A. LUSK. 367

fied to it before you and there is no question in your mind or
in anybody 's mind but that is just what she said and that she
had a reason for saying it. The reason was because when she
said it it was the truth. She had not then filed any plea of
insanity. That was about the first of September. The plea
of insanity was filed here December 3rd, three months later.

Dr. Roberts has told you and Mr. Block that possibly they
were five or six minutes in going from the doctor's office over
to the Mills' home. Dr. Davies tells you — and the Ovitt
Block is right across from Dr. Roberts' office and just as far
away — that it took him two minutes. Dr. Roberts went over
there immediately upon his wife's telephoning him to come.
He and Mr. Block got into his car and went right over there.
I think he is over-estimating the time it would take to travel
not to exceed two or three blocks. I think two or three
minutes, or four at the outside, would cover the time that it
took him to get into the Mills ' house, where he found his wife
just expiring. This shooting had taken place between the
time Mrs. Roberts telephoned him and the time he reached
there. It all took place within three or four or five minutes,
or whatever it is, that he was on his way there. No dis-
cussions took place after Mrs. Roberts telephoned to Dr.
Roberts to come there, no reading of letters. Undoubtedly
she telephoned to the doctor while Miss Lusk was upstairs.
She wanted matters straightened out. The doctor came over
there immediately. Not over three, four, five or six minutes,
as the case may be, until he arrived there and the whole act
had been done. Grace Lusk had retreated upstairs and was
in the act of re-loading her pistol when he arrived there.
Dr. Davies says it only took him two minutes to get over
there. He probably hurried a little more than Dr. Roberts
did. His mission was a more hasty call.

Gentlemen, from all these facts and circumstances in this
case, there can be no excuse, no justification for Grace Lusk
killing Mrs. Roberts. From all the testimony in the case,
from all the testimony which you heard, there was no oc-
casion for Grace Lusk to shoot and kill her, and there is no

368 XIV. AMERICAN STATE TRIALS.

excuse or justification in the law for any such act — no matter
what she called her, and no matter what she said to her ; and
I believe the Court will so instruct you.

The Court will submit, as I understand, three phases of
homicide to you : Murder in the first degree ; murder in the
second degree ; and manslaughter in the third degree.

The third degree of manslaughter is the killing of a human
being while the defendant is in the heat of passion. Grace
Lusk has taken this away from you gentlemen by saying she
was not angry when she killed Mary Newman Roberts. So
she has not availed herself of a defense of heat of passion but
she has absolutely denied it and stated before you that she did
not kill her while she was in the heat of passion. By that
"heat of passion" is meant anger. There are times when a
person becomes angry — so angry, in fact, that they do things
which they would not have done in cooler moments. That is
what the statute is meant to cover. Grace Lusk tells you she
was not angry at that time. So what is there left in this case,
gentlemen, for your consideration except this question of in-
sanity which I have dwelt upon for some time and which will
be further discussed before you ?

Counsel for the defense will attempt, in their arguments to
you, to try Dr. Eoberts. He is not on trial here as yet,
gentlemen of the jury; and you will not consider any argu-
ments made to the effect that he is being tried here. If that
is done for the purpose of throwing dust in your eyes so that
you will not see the real facts in the case that you are now
trying, you will know how to dispose of it. In the new system
of warfare that we read about, they put down a barrage,
and they camouflage things to shut out the real facts. Is
this a barrage or is it a camouflage? That is for you to
determine, gentlemen of the jury. A great deal will be said
to you in prayers for sympathy for Grace Lusk. No one
sympathizes with her any more than I do. I am sorry that
she did what she did. But, gentlemen, you should not be
carried away by sympathy. You are trying, as you held up
your hands and swore that you would try, this case upon

GRACE A. LUSK. 369

the evidence offered to you in court; and you said that at
the close of the evidence if there was left in your minds no
reasonable doubt of the guilt of Grace Lusk, you would not
hesitate to say so by your verdict. A great deal might be
said about sympathy on both sides of this case — sympathy for
the woman who is ushered into the presence of her Maker
without any preparation. But, it has no place in this case,
and I am not going to discuss it. Attempts to arouse sym-
pathy here are for a purpose and that purpose is not complete
justice such as you have sworn to give in this case.

Now, gentlemen, I have discussed only the salient features
of the murder, leaving those things which led up to the
murder to be discussed by those who follow me. I have tried
to be fair and you will judge whether or not I have been fair
in the presentation of this case.

Take this case, gentlemen, and say what your verdict is
upon the question of the guilt or innocence or insanity of
Grace Lusk.

MR. LOCKNEY FOR THE PRISONER.

Mr. Lockney. Gentlemen of the Jury: You are the ulti-
mate judges, the last and final judges of the facts in this
matter. You have heard them talked about and testified to.
You will hear discussion and argument of them from both
sides. You will hear the direction of His Honor upon the
bench as to what the law is; but when all is said and done,
you are the final, ultimate instrumentalities by which, so far
as it may be possible, justice is wrought. Under ordinary
circumstances, the burden is not so large; but in a tragic
situation such as has unfolded itself before you here the
burden becomes tremendous. It was in view of the burden
of that responsibility that you were so carefully examined
before you were accepted by both sides as men not merely
fit, but qualified by your attitude of mind to sit in this jury-
box and discharge that duty, and carry that burden.

There was a time in England — and we get our system of
law from the common law of England essentially — when the

370 XIV. AMERICAN STATE TRIALS.

prisoner at the bar was denied the privilege of the assistance
of counsel. It took a long time for tradition to break away
from that, and for people to realize that a person charged
with crime was not at once an outcast from the pale of society.

It was realized that human justice was imperfect at the
best ; that whatever the act may be that is being inquired into,
there may be different qualities, degrees, circumstances, dif-
ferences of responsibility, and in the view that human justice
should take of that act. It was also realized that people who
were absolutely innocent were often accused of crime under
circumstances exceedingly difficult to meet, and that in order
to have the system of inquiry and determination complete,
it was necessary that both sides of the matter should be in-
quired into ; that the people making the accusation, and pre-
senting the evidence that appeared to be so strong as to make
the act itself rest upon the very pinnacle of infamy, should
be subjected to the greatest test of truth that the mind of
man has yet been able to devise — the test of cross examination,
the test that brings out all the story and all the circumstances
surrounding the act.

You said when you were examined as jurors that you came
to the trial of this case without any formed or expressed
opinions about the truth or the right of the matter ; that you
came here with open minds and hearts, free from prejudice,
free from bias, willing and able and determined to sit to the
very end of the case with open minds, not reaching con-
clusions upon half truths. Approaching the matter in that
state of mind, you also said that you had no prejudice, no
feeling, no bias, against the interposition, in behalf of a de-
fendant situated as this one is, of the defense of lack of
mental responsibility at the time the act was committed — in
other words, to the defense of insanity. You said when you
were questioned that you would be able to consider and
weigh all the facts and circumstances and evidence brought
out in the case bearing upon that branch of it, with the same
mind, in the same scales that you would any other part or
branch of the case.

GRACE A. LUSK. 37f

It is easy for it to be suggested — as it has been already
by innuendo — that a defense of insanity is a made-up de-
fense ; that it is thought of after the event. We realize that
we have that suggestion to meet ; that it will be argued and re-
argued in one form or another, and that you will be asked —
not directly, but by suggestion — to do exactly that thing
that you said you would not do ; that is to fail to give to that
defense in this case the same careful and conscientious;
thought, the same weight of consideration to the evidence;
supporting it, that you would to anything else or to any other
kind of defense.

It is to the credit of the humane and just laws under which
we live that a person brought into court charged with
crime is not there for the purpose of persecution. He is
there for the purpose of fair prosecution. And I want to
say, that the prosecution of this case has been prosecution
and not persecution. It has been a fair presentation of the
matter as it appeared at first blush and as it appeared from
the standpoint of the highest degree of guilt, the most ter-
rible crime, next to treason, that a human being can be
charged with. The law does not desire nor require the con-
viction of an innocent person. It neither desires nor requires
that the person who is the victim of circumstances, facts,
heredity, conditions, or dethroned reason, who is not responsi-
ble, shall be found guilty as though responsibility were there.
We of the defense have no excuses and no apologies to make
for having interposed the special plea of insanity in this
case; to have done less than that would have been to fail
not only in our duty to our client, but in our duty to society,
and particularly in our duty to you as jurors, that there
might not be the reproach upon the administration of justice,
that there might not be the accusing finger in the future in
your hearts and minds that a person not mentally responsible
should be punished as one who is mentally responsible. We
stand here with the great statesman and lawyer, William
H. Seward, who, in his Memoirs, says that the thing that he
was proudest of in his career was not his great work as

372 XIY. AMERICAN STATE TRIALS.

secretary of state, but was the defense, as a young lawyer in
Elmira, of a negro, accused of a heinous crime, upon the
ground that that negro was insane and not mentally responsi-
ble at the time of the commission of the act,9 done at a time
when that was an unusual thing, at a time when it took
courage on the part of that young lawyer to do it.

There are certain issues to be met and solved in every case,
no matter how petty. Ordinarily, there is only one form
of verdict submitted. In this case there are five. That, in
itself, should be an intimation that the case is not so simple,
not so clear, not so plain as counsel for the State in his open-
ing argument has intimated. These five verdicts which will
be submitted to you are these : Guilty of murder in the first
degree, or in the second degree, or in the third degree, or not
guilty, or not guilty because insane. In other words, the
testimony in this case is of so varied and complex a nature,
the problem is so difficult, that it requires not one, but five,
issues to be submitted to you for your judgment.

Now, what is the first degree of crime that is to be sub-
mitted to you? It is a premeditated killing. This means
to think over, to form the design intentionally, consciously,
just as you would form the design to take a trip to Chicago
or to Milwaukee, or do any other thing. It means deliber-
ation, thought, intent.

His Honor will charge you that no specific length of time
is required to go through that act of premeditation; that it
may be done quickly. But it must be a thinking over.
"Meditate" means to think and "pre" means before. It
means a thinking over beforehand and the formation of the
intent and purpose with coolness to effect the death of
another.

"We shall contend that the evidence in the case very clearly
shows that there is nothing of that kind here.

The second issue is the killing of a human being when
perpetrated by any act imminently dangerous to others and

20 See, Trial of Freeman 16 Am. St. Tr.

GRACE A. LUSK. 373

evincing a depraved mind regardless of human life, without
premeditated design.

The third issue is manslaughter in the third degree. That
is defined in this way: "Any person who shall kill another
in the heat of passion, without a design to effect death by a
dangerous weapon. ' '

Now, counsel, in his discussion of that, disposed of it very
briefly by saying that it was out of the case because of the
defendant's testimony. An all sufficient answer to his sug-
gestion is that His Honor has submitted that issue for you
to pass upon.

Then, the other two possible verdicts are: "Not guilty,"
and "Not guilty because insane."

Before I take up the "Not guilty because insane" propo-
sition, I want to discuss one or two other legal propositions.
First, the defendant comes into court presumed to be inno-
cent. No person, be he of high or low degree, is brought
into court with the presumption in advance, on account of the
charge, or the arrest, or of the proceedings, or of the ma-
chinery of the law — that he or she is guilty. They come in
with the burden and the duty not of proving themselves
innocent, but with the duty and the burden upon the State
to prove them guilty. That is the rule of law that applies
to all of us, to this defendant today, and that will apply
to her when you finally withdraw to your jury room for the
consideration of this cause. It is a rule that you would want
applied to you, in the minds and the hearts of a jury, if you,
through any misfortune of circumstances, through any com-
bination of events, should ever face a jury of twelve men of
your county. That presumption is one of our guide posts.
It runs through to the end of the trial, to guide you in your
examination of the evidence; and in our consideration of all
the issues submitted.

There must, of course, be a time, in some cases after the
jury have listened to the whole case, after it has heard all
the evidence and after it has gone to the jury room, when
that presumption is overcome. Elsewise human justice would

374 XIV. AMERICAN STATE TRIALS.

fail and there could be no conviction in any case under any
circumstances. Now, when is that time? It comes when, by
the evidence in the case adduced in court, you are satisfied
and convinced beyond a reasonable doubt that the defendant
is guilty of something, and of the degree of that guilt.

You have heard the phrase, reasonable doubt. A reason-
able doubt is such a doubt arising from the evidence, or the
lack of evidence, as would cause a reasonably prudent man
to pause and hesitate in the most important affairs of life;
and evidence does not measure up to the requirement of
being sufficient to overcome that presumption of innocence
in regard to any issue in the case until that evidence is so
compelling upon your minds that it satisfies you beyond this
reasonable doubt — that is, beyond the point or the state of
mind where the reasonably prudent man would pause or
hesitate in the most important affairs of life.

In a civil suit the rule of proof is entirely different. There
your mind must be satisfied, not beyond all reasonable doubt
of the right and truth of the matter, but it must be satisfied
by a preponderance of evidence. You may still have a reason-
able doubt of the correctness of your decision as jurors, and
yet, under the rule of proof that is laid down to you by the
Court, you have a right in a civil case as jurors, notwith-
standing, as reasonable men, to find your verdict.

Far different from that is the rule of duty and of law in
a criminal case. You cannot act, you must not act, you dare
not act, on your, oaths, upon any overbearing, overweighing
preponderance of the evidence, so long as there is in your
minds that doubt, as reasonable men, which would cause you
to pause and hesitate in the graver and most important
affairs of life. There the law says: "Halt! Beyond that
mark you shall not go against the defendant." The Court
will tell you that you should not search wildly and outside
the evidence for doubt. It does not mean that you should
indulge wild or fanciful doubt; but it means that when
such a doubt reasonably arises upon the evidence in the case,
that you must stop, right then and there in your mind's ope-

GRACE A. LUSK. 375

ration upon that branch of the case, and whatever it may be,
give to the defendant the benefit of that doubtful, pausing
and hesitating state of mind.

What is the insanity that you are concerned with in this
case? The Court will probably define and deal with it at
some length, and at such length that I shall not undertake
to give the words by which he will express it. Roughly, and
in substance, the insanity with which you have to deal is a
state of mind, the result of disease, that destroys reason, that
overthrows the power to reason, that displaces responsibility.

Legal insanity is a condition of the mind of the defendant
at the time of the commission of the act where the brain is so
diseased, that reason does not operate so as to enable the
person to distinguish between right and wrong in regard to
the act.

The law is, as human experience teaches, that the pre-
sumption is that every person is sane until the contrary is
shown or suggested to the point that the law requires. Every
person is presumed to be sane; but it does not follow from
that that the burden is upon the defense, where the special
plea of insanity is interposed, to prove the insanity of the de-
fendant beyond a reasonable doubt, as the State is required
to prove all elements of its case. That could not stand in
the face of the presumption of innocence. So what the de-
fense has to do on the issue of insanity, and what it must do,
is this: to bring about in the minds of the jury a reasonable
doubt as to the sanity of the defendant; in other words, if
upon the examination of all the evidence in the case bearing
upon the mental state of the defendant, the mind of the jury
is in that condition of reasonable doubt, used just as I dis-
cussed and defined it before, it is your duty again to give the
defendant the benefit of that doubt, and find in favor of in-
sanity. All that I have said to you on the subject of what
reasonable doubt applies in that way to your consideration of
the evidence upon the question of the mental condition of the
defendant at the time the tragedy occurred ; and, if upon the
consideration of all that evidence you are in a state of mind,

376 XIV. AMERICAN STATE TRIALS.

where, as reasonable men, approaching the consideration of
the most important affairs in life, you pause and hesitate as
to the sanity or insanity of the defendant, then, again, it is
your duty, under your obligation as jurors, to find in favor
of the insanity of the defendant.

There are so many things and elements to be considered
in this case that it is a little bit difficult to know from just
exactly what angle to approach them. This is an extraor-
dinary case; one, the like of which does not happen very
often ; one not so simple as the prosecution indicates.

On the 21st day of last June something happened in the
city of Waukesha. One woman, a wife, a respectable
woman, with an excellent position in society in this com-
munity, was dead. Another woman who had moved in the
same circles, had the same friends, been part of the same
life — who had the respect and the regard of hosts of friends,
through fifteen to twenty years — hard and assiduous toil
in and devotion to a profession, who had contact with all
the finer and all the elevating and ennobling things of life,
a woman of spotless life — except for the events connected
with this tragedy — of splendid reputation, lay supposedly
dying upon a bed of pain in the Municipal Hospital of this
city, placed there as the result of two bullets fired through
her own body by her own hand.

The husband of the woman who was dead had been a man
successful in business, well along in middle life; a man of
more than ordinary financial success ; who held an assured
position in the social and business life of this city; was a
trustee of one of the leading churches of the city: a hand-
some, a well dressed, a good living and doubtless a hard
working man surrounded by all the apparent comforts of
life. Is it any wonder that the inquiry was : How did this
all happen? And it was not enough, it did not explain, to
simply say that the finding of the body of the woman who
was dead, and the knowledge of the things that happened
at that house on Park avenue accounted for that tragic con-
dition of affairs. Everybody knew that there was more

GRACE A. LUSK. 377

than that somewhere. Conditions of that kind do not occur
without causes, without long and gradual insidious, unseen,
unguarded, unappreciated, unweighed happenings that are
the steps that impel or lead to a condition of that kind;
and the problem in this case was : What were those causes ;
what were those impulses, those hidden things that brought
about this condition of affairs?

The story has been told here in the evidence in this case,
and it has been told in two ways. You cannot ignore nor
avoid or get away from, in your consideration of this case,
both the stories that attempt to throw upon the screen the
things that led up to and caused the scene of June 21, 1917.
You have heard one of those stories, one of those accounts,
or attempts to account for the situation from the lips of a
witness for the State. Without that story that he told the
State could not possibly supply to the minds of any twelve
intelligent men the ingredients or concomitants, the things
that must be established beyond all reasonable doubt before
any living human being can be found by you or by any other
jury guilty of murder, as charged, in the first degree.

May 28.

I want to deal with him and with his story fairly, without
passion, without yielding — if I am able to do it — to any of
the impulses that a story of that kind might arouse in the
mind of any man who has lived long enough to go beyond
the period of adolescence ; to deal with it, and with him as
gently and as fairly as the picture that he himself draws
and etches of himself, that bites into the minds as the acid
upon the plate, will permit.

Let us take him as he appears, to all, except the wife in
his house, and the inmates of his office. He is a man pre-
possessing in appearance, so far as the gifts of physical
attractiveness of a certain kind are concerned; a man who
had lived through forty-nine or fifty years of the world; a
man who in those years had accumulated property; a man
who started out in an honorable and necessary profession;

378 XIV. AMERICAN STATE TRIALS.

but who had seen beyond the bare routine of driving about
the country and treating sick animals, cattle and horses; a
man who had foreseen the opportunities that lay in the up
breeding of better cattle, who perhaps was one of the first
in that field, and successfully so, and proud of his success;
a man whom it is also fair to infer went into that field as
a secondary consideration, in order to further and advertise
the sale of proprietary medicines for animals, and prepara-
tions and prescriptions of his own devising ; a man who had
been trusted by appointment to the highest position in the
state in his own particular field; who had been state vet-
erinarian; a man who was maintaining the outward sem-
blance at least of living as man ought and should live by
his connection with his church and his activities in it; a
man who had associates among the leading people, or those
who thought they" were the leading people in his city ; a
man who traveled much about the country in his busi-
ness. That is the outward appearance, at least as it occurs
to me, of the witness from whom comes one stream of
thought ; a man who could go behind the bare details of this
tragedy to find out what it was really all about and what it
really all meant.

Now, in substance, what is his answer to that question
mark that wrote itself so large and so wide and so ever
present in the minds of all men who heard of the event after
the afternoon of June 21, 1917. That answer is this : That
in the month of March, 1915, he had conceived the idea of
putting forth a publication, intended for the general good,
to be introduced and which would fill a long felt want, in
agricultural schools and in the general schools where agri-
culture is taught. Prior to that time he had had a very
slight acquaintance with the defendant in this case. He had
reason to believe that she had peculiar abilities of mind that
were able to serve him in the furtherance of this project.
He was able to supply the ideas, but he needed some advice
and some assistance along the technical side of putting that
publication in the best form and manner, and getting it

GRACE A. LVSK. 379

ready. Therefore, entirely without any other motives what-
ever, he got into communication with the defendant and
suggested a business arrangement of that kind. That busi-
ness arrangement began over the telephone early in March
or late in February, 1915, and consisted of a mere extending
of an invitation on his part to take up this work and an ac-
ceptance on her part to the extent that she was willing to
meet him and consider it. Up to that time there had never
been between them a solitary interview alone. He had never
laid eyes upon her, had never conversed with her, as he tells
the story, except in the presence of others, save for the tele-
phone conversation where he was at one end of the wire
and she was at the other.

Following that, early in March, 1915, an arrangement was
made by which he met her at the Y. M. C. A. for the purpose
of talking over this book. They talked it over and then his
story is that out of a clear sky, like a thunderbolt from the
blue, this defendant, without any word or preface, except
the suggestion that she was cross because she did not get a
letter from a sweetheart, made the cold blooded, cold turkey
suggestion to him that he take her down to Chicago and
give her a good time. That he protested. That all he could
think at that time to say to her Avas ' ' what would you think
of me as an honorable man, an honorable married man, if I
should do anything of that kind?" And that then running
along into the future, he was so concerned Avith AA'hat she
A\rould think of him as an honorable married man that he
further protected himself against that sudden onslaught
upon his virtue — that he could say to her: "You better not
do that noAv. You better wait a year, and maybe you Avon't
want to do it then."

Finally, folioAving on — he could not tell just AA^hether he
kissed her first or she kissed him first; these meetings con-
tinued, and finally, after a visit to Chicago for the purpose
of talking over his book and the meeting in the Grand
Pacific Hotel where he visited her at her room several times
and remained there for different lengths of time, finally

380 XIV. AMERICAN STATE TRIALS.

illicit relations between them began. Then he tells us, by
silences, by what he does not remember, and by what he
does remember, that these relations continued down to April
preceding the tragedy. But always she is the one who is
responsible, that always he is the pursued and she is the
pursuer. That at length this became so bad and she was
pursuing him so hard that he began to want to fix the thing
so that she would drop him instead of him dropping her.

All this time, he testifies, he was in the happiest of rela-
tions with his wife ; and if his story is to be construed as an
explanation of these events at all, it is a fair inference from
his story that he had been up to that time an honorable mar-
ried man in fact as well as in theory, until he was coerced
or dragged from the path of virtue as an honorable man,
in spite of his utmost resistance, by this girl. As time went
along, she entirely, without assistance or encouragement or
talk or discussion or anything whatever to go on, conceived
the idea that she must eliminate Mrs. Roberts as one corner
of the "eternal triangle." Therefore, on the 21st day of
June, entirely without assistance, invitation, discussion or
talk between her and Dr. Roberts at all, she shot Mrs.
Roberts in order that she might have her place. That is the
motive that was claimed in the opening statement.

Maybe you believe that. You have a right to, if you want
to. I can only suggest a few things by way of possible tests
to which a story of that kind ought to be subjected before
it is received, swallowed, digested and made a part of the
moving things that make up your minds in your considera-
tion of this case.

One of the tests of truth as to any evidence in a case, any
story that is told in court, is how the thing squares with
common, ordinary human experience. I do not believe that
within the ordinary experience of the ordinary man, such
as you and I are, our fatal beauty has been so terribly fas-
cinating that young women of any age jump at us like that
and seduce and coerce us from the path of virtue, married
or unmarried as we might be. I doubt whether that squares
with the experience of the average man.

GRACE A. LUSK. 381

It would be an extraordinary thing, a thing that you
would not believe — even if the claim were made that those
words had fallen and that that plan of action had been
pursued by a woman of the streets. But we have here not
that kind of a woman as the other side of this equation.
It is Dr. Roberts on one side and the defendant on the other.
I say to you that if, by any chance, the story of Dr. Roberts
is true, then it, in itself, is evidence that the defendant was
not then, and has not been since, a sane person. Sane
women don't act as Dr. Roberts claims that girl acted, in
view of the kind of woman that she unquestionably was. If
the girl did anything of that kind she was, beyond the per-
adventure of a doubt, insane; but I am not arguing to you
that she did anything of that kind. I am going to ask you
to follow me along the path that actually brought that girl
— after the time she met that man who makes this extraor-
dinary and unbelievable answer — to the point where she sits
today. And it is a natural and not an unnatural path that
she traveled, pushed along by, and in part, and so far as it
was to his interests, accompanied by him. There are two
tragedies in this case. There is the tragedy that occurred on
the 21st day of June, 1917. We cannot minimize it. Coun-
sel spoke of the Mosaic Law; two of them, as he said, had
been violated in this case. He cited the one "Thou shalt not
kill," and he cited the other against covetousness. Strange,
strange that he did not cite another section, another Com-
mandment of that Mosaic Law: "Thou shalt not commit
adultery." True it is that after Moses there came another
who summed up all the law when he said : ' ' Thou shalt love
the Lord, thy God, with all thy soul, and thy neighbor as
thyself." And "thy neighbor" included the school ma'am
teaching in the Y. M. C. A. after those years of extraor-
dinary training and sickness. That Commandment lay upon
the man who had lived this successful life. And the other
tragedy in this case is the breaking down, the destruction
of all that that girl was and had been until she met that
man, to the place where she is before you today. Let us see

382 XIV. AMERICAN STATE TRIALS.

what the answer really is and what lies behind this problem.
Who and what was the defendant?

She grew up, tended and cared for and loved by father
and that mother and by the neighbors that came into that
home. She was a bright girl, overly bright, not strong,
rather retiring, preferred the company of girls and of books
to the company of boys about the playground; the kind of
girl that devotes herself intensely, day after day, and with
all the strength and ardor of her young life to achieve the
ambition that she had, to be something better than what she
was. Graduated from the high school, marked by certain
peculiarities of conduct, temperament, mentality, but mostly
marked by her ability of mind and her devotion to her
books. She entered the field of teaching; went to White-
water to Normal School, and then went out to teach; went
back to Normal School in Milwaukee to prepare herself
further for teaching ; was not satisfied that she had done all
with her one talent that the Lord had given her that could
be done with it; so she struggled on to make that talent
multiply. She went to the University and graduated there ;
she was selected by those in charge of the observation of
school teachers and school work in Milwaukee as one of
those specially worthy to deal with educational problems;
had been sent abroad for that purpose ; had been abroad
once on her own motion in order that she might be better
able and have a richer fund of knowledge and observation
to pass on to those who were her pupils. How did she do
this thing? It was seventeen years between the time that
she left the portals of the Stoughton school to the time that
she left the University of Wisconsin with that degree of
recognition that was necessary before she could do the
fullest work in her teaching profession. How did she do it?
The ordinary boy or girl, as we all know, does that thing
between the high school and the leaving of the University
with that degree in four years. Seventeen years passed for
this girl before she had attained the place that four years
would have put her at, had she been able to follow her

GRACE A. LUSK. 383

course right up in that way. What was she doing in the
meantime'? Was she standing here and there in Y. M. C.
A.'s or on the street corners, or any place else, saying to
men: "Take me down to Chicago and give me a good
time." Yon know she was not. Instead of that, she was
fighting her way against ill health, year after year, place
after place, school after school, with intervals of study in
between. More fortunate, less ambitious and more happily
placed girls spent hours of pleasure and ease while she spent
them in pursuit of the necessary knowledge that was to
qualify her, step by step, doing it in spite of physical
handicaps that might well have daunted a less high and in-
domitable spirit. She was not straying year by year, time
by time, month by month, vacation by vacation, here and
there in the primrose paths of dalliance with any man, not
even upon invitation of the man, let alone violating what we
all know to be the first and deepest seated consideration of
womanhood, the thing that gives her the most happiness of
anything else if she is a natural woman, to be pursued or
sought after.

She was earning golden opinions of those who had the
chance to know her, and who did know her; accumulating
efforts, with all that friendship means, not in one place and
spot but following and trailing her like a cloud of glory to
her darkest hour; the friends that she had made from girl-
hood days, had their good opinions of her. You saw them
come here, those who knew her from the time she was a girl
in school, down to the city of Waukesha, through the hours
preceding the tragedy itself. They were not of any special
kind or variety, not of one sex alone. They were the men
and the women who had known her best, who had their best
opportunities for seeing her, who had seen her at the period
of life when, if she were a light minded girl inclined to stray
from the paths of virtue at all, she would have been most
likely to do it. Old men, the companions of her youth, her
school mates all along the line ; motherly women with broad
bosoms that have sheltered families, coming here to say that

384 XIV. AMERICAN STATE TRIALS.

she was good — down to the wife of the superintendent of
schools of this county; down to the women who knew her
in the clubs of this city and the circle in which she moved ;
down to the superintendent of schools of this city himself;
down to the aged man who was clerk of that school board
and saw her day after day — all tell the same story of an
unsmirched and spotless life and character.

The story that was told here by that man on the witness
stand would have been impossible had he been telling about
a harlot with a red trail from here to San Francisco. It
becomes inconceivable folly, balderdash and rot when ex-
plained by him in the way and under the circumstances that
he told it, of a girl with a record like that, unless you be-
lieve that at that time she was absolutely crazy. No, we
know that things do not happen in that way. It never
happened to any of you, and it never happened to any man.
What did happen? What is the answer to what lay behind
the 21st day of June, 1917? There lay behind it the girl
that I have described to you, the girl that is pictured to
you and made plain to you by the testimony of those who
have known her variously and best, all along from the be-
ginning of her struggle. There also lies behind the self-
styled honorable married man living in happiness and con-
tentment and sympathy and understanding, after nearly
thirty years with the wife of his bosom, who had been
dragged down from his high place by this vampire, the
strangest vampire that human mind ever thought or heard
of, the one who could be the woman who would do that kind
of thing and still accumulate these treasures of esteem and
friendship along the way all the time that she was engaged,
sick, ill, saving her money and trying to make something
better and bigger and more useful of herself.

She told, as well as she could, in little words that dropped
like drops of water upon the marble block, the story of the
gradual and insidious beginnings, and the follow-ups, and
the little steps by which that ruin and that tragedy was
accomplished. Not even the man who did it himself could

GRACE A. LUSK. 385

tell exactly how it was done. The wisest man, said to be,
that the world has ever known gave it up thousands of years
ago. It is written in the words of King Solomon: " There
be f our things that be too wonderful for me : The way of
an eagle in the air; the way of a ship in the midst of the
sea ; the way of a serpent upon the rocks ; and the way of
a man with a maid. ' '

I do not know whether or not that wise old king made
those comparisons of his and ended up with "the way of the
serpent upon the rock," before he spoke of "the way of a
man with a maid," because he knew, and had in mind, the
slimy similarity between the serpent and the seducer; but
to me it seems that the order is significant.

The girl fell under his sinister influence, she became, up to
a certain point, the woman malleable, the putty in his hands,
the clay upon the potter's wheel, fibrant like the violin
string to respond to the twitch and the pressure of his finger.
He changed her from the girl she had been, from the gay
and frank creature at times and the girl of natural mel-
ancholy and reticence and depression and blues at other
times ; from the kind of a girl who could write the letter she
wrote to Winifred Wymans on the day of the tragedy that
showed her real and natural self, the girl without a secret
who could open her eyes and look the whole world in the
face, to a creature with a thing gnawing at her heart, at her
vitals, at her conscience, undermining everything that life
had made her before that, subject to his will, the creature of
his passions, the sympathizer to him who claimed the need
of sympathy but all the time within her breast that tortur-
ing secret to go to bed with her every night and all.
"Woman! The thing that she did was wrong. Of course, it
was wrong. But she did the thing that thousands of women
during the centuries had done before because they were
women and because they were worked upon, moulded, made,
re-made, pulled to pieces and put together again by a man
who is stronger than woman. In this case, if his wife 's pic-
ture of him as she drew it to the defendant on the 21st day

386 XIV. AMERICAN STATE TRIALS.

of June, has any little finger's measure of truth in it, who
was the master hand at that handicraft ?

Contrast, if you will, ask yourselves which you are going
to believe, the utter truthfulness of this girl all the way
down in everything that she has told about this tragedy,
or the other side of the story? Are you going to believe
that she was untruthful and that he was truthful in his
story of what occurred in the Y. M. C. A. the first time he
had ever seen her and talked to her alone? That damning
and damnable story, the one that damns and marks and
sears and burns beyond the possibility of being forgotten,
or do you believe the simple, human, natural truth that the
girl told? The story of the casual meetings from 1913 on,
here and there, mostly at church suppers and sociables
where all that happened was that he, one of the leaders
in a way of his community, a man of wealth and position
and prestige who had so many automobiles that he hardly
could remember how many he had, who had the handsome
home and the assured position, was kindly, gentle, suave,
agreeable, going out of his way to say the kind word, to give
the gentle, inoffensive handclasp, to pay a little bit of at-
tention to the lonely school ma'am. Those things are dis-
arming, and he knew that they were disarming. Those
things laid the foundation stones upon which he accom-
plished, studiously but surely, the plans upon which to
build his dastardly structure. You must go gently in a
field of that kind. If you see the object of your desire, or
a possibility of conquest, or a chance to cut a new nick for
another victim, you must not scare the quarry. Again, the
wise man: "In vain in the sight of the bird is the net of
the fowler displayed." You must not scare the bird by
shooting the trap ; you must not scare off the chance of
getting that girl who looks good to you, with that kind of
a life behind her, by being too abrupt, too rapid, too brutal
in your advances. And that is the reason why insidious
means are necessary, and are adopted by men like that, and
used — and used, alas — successfully through all the ages.

GRACE A. LUSK. 387

Old, old, old stuff, reaching way back to the time of Helen
of Troy, and back of that and back of that. Old, old stuff,
but if handled by a master and conditions are just right,
it does succeed in the end. That is why King Solomon said
that the way of the man with the maid was beyond him,
was too wonderful for him, because language cannot de-
scribe, not even from the lips either of the seducer or of the
victim of that seduction, the way of that man with that
maid. But it went on, always, always the kind note, always
the note of gentleness, always the note of goodness misun-
derstood, desiring to be better understood in order that it
might accomplish more good. No haste. No hurry. He
takes her riding first from the place where she lived in the
company of others. He is beginning to get a little warmer
then, and he makes a little suggestion or two that she can
recall that did not strike her as being just in the right note
and tone, but it was so gently done, and so quickly with-
drawn from that no one scarcely could take the risk of
having perhaps misunderstood it, and put herself in the
wrong instead of him. And then he follows it up with the
business proposition, a proposition along the lines of her
qualifications and her interest which appealed to her. Why
shouldn't it? Probably the mere chance that she would get
the money appealed to her. She could use it. The chance
of the experience was something. It looked so desirable
and so innocent as he covered the net of the fowler from
the sight of the bird with that attractive cover. They
worked on that book through November and December, the
meetings becoming more and more and ever more frequent,
and the little dodges by him that appealed to a woman's
sympathy. Finally the suggestion on Christmas Eve that
his wife could not go along, and wouldn't she ride out with
him upon the merciful Christmas errand of distributing
presents, largess to the children of his tenants and em-
ployes. Doubtless she knew that in the eyes of convention
she should have answered "No, I won't go if Mrs. Roberts
cannot go, or unless somebody else is going." But doubtless

388 XIV. AMERICAN STATE TRIALS.

also by that time that insidious poison that he had been
pouring into her heart and mind had gone and gotten in
some of its deadly work; and on that Christmas Eve, an
hour when the hearts of man and woman, and particularly
that of woman cries out in its loneliness for the things of
home that Christmas means, the little children and the fire-
side and the sacred safety of the family circle — alas, she
forgot convention and yielded, and took a fatal chance.
Then with what cunning art, with what experience, of what
spots to build upon in the nature of a good woman, he did
his work. He picked that hour, and he picked that time —
and leading up to it through the pathway of the child, the
thing that was part of her life, he made the ancient old
suggestion about the man desiring to do good, desiring to
do more good, the man misunderstood in his home. Nothing
new about that means of approach ; and, as she tells it here,
and tells it with the absolute ring of truth, how skillfully
he did it, how he touched upon it, squirted the poison into
the mind and being and was away again, waiting, waiting
for the opportunity for the next dose. The siege was on in
deadly earnest then ; the miners and the sappers had run out
their trenches round the borders of that girl's heart and
mind and purity and honor ; they were ever drawing a little
bit closer. And so it goes on until some time late in Feb-
ruary or in March, when there is the contrast — and you
must grasp one or the other of those contrasting things as
the key to unlock the riddle of what followed; grasp it in
accordance with your experience and knowledge of the
world, your ability and judgment to weigh and consider
things and events.

The time is about the same — no doubt the occasion was
identical — in both their minds. The time to which they had
reference in testifying was no doubt identical, even the
exact date of it, whatever that time may have been. His
account is the key that he offers you, that the State offers
you in this case, that the State finds it necessary to offer
you, and asks you to grasp and cling to as the explanation ;

GRACE A. LUSK. 389

that after this insidious encirclement and deceiving, that
kind of a girl at the second meeting made the damnable
proposition that he suggests; or the other key, the key of
truth, the key of reality, the key that when struck against
your heart strings and mine, and the heart strings of any
and every living human being that hears or reads of it,
rings forth the answering tone of truth itself, that that day,
as she sat there working over that manuscript at that desk,
he swiftly stooped over her and gave her the first kiss that
passed between them. He thought the time was ripe. His
judgment told him that he need delay no longer; that the
defenses were where they could be taken by storm; that the
time to rush in and be bold in his work had come; that he
had worked upon her sympathy, her friendship, her admira-
tion for his position, the familiarity that had grown up be-
tween them by want and use and seeing each other during
these months, the friendship that had been established from
the beginning because of the kindly and courteous manner
in which he had treated her; that the time had come when
he could wake her up to something deeper than that by the
response that he might get from the God given passion that
is in woman, and the God given passion that is in man ; and
then like the startled girl that she was, and exactly in ac-
cordance as all girls who have ever been ruined in that way
have done before by the time-worn wiles of a married man,
she rushed to her feet : ' ' This is wrong. You are married.
You ought not to do that;" and there he stands to complete
his work. The fascination has gotten hold of her, and she
does as all women who have ever been placed in similar situa-
tions and who have fallen have done. She yields and returns
the caress. That is the key that unlocks the door to what
followed, and gives the clue to the answer to the questions
that will be submitted to you in this case.

This is a tragic story any way you look at it. If the seed
had been ardent, what was it then, from then on? It came
along with a rush, and a swing, until finally in April he
accomplished his full purpose with that girl. What was it

390 XIY. AMERICAN STATE TRIALS.

to him, and what was it to her? To him it was but the
achievement of a given aim, a thing that it is fair to infer
from this testimony in this ease, that he had accomplished
repeatedly before. It was merely another instrument of
pleasure at his disposal, useful to him as he saw fit to use
it, and when a better, another and newer instrument crossed
his path, when he became tired for any reason of that in-
strument, or when, for any reason, that instrument became
inconvenient to him, to be cast aside as he had cast aside
others that preceded her. That is all it meant to him.

To her it meant the giving up into his keeping of her
woman 's virtue ; that up to that time she had kept sacred.
It meant that he was fooling with a different kind of clay
than he had ever touched before. It meant that this woman
of nerves, intense, high-strung temperament, ancestry and
training, this woman beyond the years of girlhood, who
knew what she was giving when she gave at the behest of the
late love that he had awakened in her heart, took the thing
seriously. To him it was a joke. To him it was another in-
cident. To her it was the first. It was the giving of the
deepest treasure of her mind and heart to him — not merely
the giving up of physical virtue. It was the devotion to
that ignoble altar by her of all the fire and love and in-
tensity and sympathy that a woman of her mind, her educa-
tion, her capacity for thought and feeling was capable of
giving to the man who had made her love him, even if that
love be wrongful.

Then began to happen what she might expect would hap-
pen, what any man of the world or any woman of the world
could have told that poor deluded creature would have
happened, that one of two things may be true : Either that
the married man who by representing himself as practically
homeless, mismated, in need of aid and comfort and sym-
pathy and companionship, at outs with his wife, is a liar,
and the things at home are not such as he says they are,
or it may be that he is truthful about it, and that they are
that way; but that whichever one of those things may be

GRACE A. LVSK. 391

true, it is inevitably true that when the time of test comes,
she is the woman who pays.

They went on together, and they played that ancient
game. They had their stolen pleasures. He was good to
her. He sought her. He desired her. It was perfectly easy
to see, after seeing the woman, what an appeal she had,
after she had laid at his feet all the talents, everything a
body and mind and spirit and heart and love that the girl
had — easy to see who was the pursuer and who the pursued ;
easy to see how the tale from him of a loveless home, a man
who loved little children, and whose longing for little chil-
dren was denied him in his home, might come to have a
meaning for that girl who loved little children, whose life
was with little children. But that sort of thing cannot go
on forever. This poor foolish girl probably did not even
stop to think in the beginning what the end might be. It
ran along for more than a year, and apparently there was
little to interfere with it. There was nothing but pursuit
on his part, and she happy to be the pursued. He was
jealous, or else he made believe he was, to increase his hold
upon her, because that is part of a relation of that kind.
I suppose it is part of the incense that love means to a
woman's heart, a little tinge of jealousy on the part of the
man. They went on with their work. They finished up this
book. She went on with her teaching. They had little tiffs,
but that was part of the game. They quarreled, lovers'
quarrels, as lovers have always. But by and by the in-
evitable began to happen. His love began to cool a little bit.
The idea began to dawn in the minds of both of them that
this thing could not go on forever. His idea was that it
would end the way all such other affairs in his experience
had ended. He would let the girl down gradually, and by
and by he would either throw her out with impunity or she
would get out herself; but, in any event, she would cease to
trouble him. But he was dealing with a different kind of a
girl, with a girl of heart and mind and intelligence and
qualities of spirit, and with her it was not so easy. She

392 XIV. AMERICAN STATE TRIALS.

f_

began to find and to feel that the thing was not
what it should be; that it could not go on indefinitely. She
began to realize that perhaps there was another side to that
arrangement ; that perhaps there was a thing that ought to
be done, not to repair the irreparable, but to make it at
least as good as it could be made ; that the least thing that
could be done was to be honest. She believed that he had
been honest with her in telling her about his unhappy rela-
tions with his wife. She knew that she was honest in her
love and devotion to him. She believed, especially after
reading and reviewing this book of Ellen Keys that there
was a possibility that if the other woman knew the facts,
she, too, might be honest according to defendant's notion
of what constituted honesty; that at least they could talk
the whole thing over as the facts were. And she began to
want to have that done. A good deal was made of this book
— a nasty book. I don't want it in my house. I don't want
to read it. I cannot understand, any more than you men
can, how any woman could write that kind of stuff. It
seems that it is considered worth reading, thought-provok-
ing, at least, and possibly it does deal with frankness about
some situations that were ordinarily kept entirely under
cover, and it may do some good to have those things met
frankly. It has been the problem of the ages that nobody
has solved yet. When and where and under what circum-
stances was that book called to the attention of this girl in
any close and immediate way? That circumstance is highly
significant of the whole situation, and of what was happen-
ing to her mental state. Previous to this winter preceding
the tragedy she had never read Ellen Key. She had read
some articles about her works in Harper's Magazine, the
Atlantic Monthly and other serious magazines. At the time
when she was beginning to be in this mental perturbation
of mind, when that ancient and hackneyed Roman had be-
gun to run his course, through none of her own seeking but
through a mere accident, she wrote a review of that book.
She wrote that review, not as an expression of her own ideas

GRACE A. LUSK. 393

upon the subject matter of the book — no reviewer does that
— she wrote it to accommodate a friend, who was unable to
do the work, in order that that paper might be prepared to
be read by still another woman, one of the most respectable
and respected married women that there is in the city of
Waukesha, at some club made up of other married women in
this city, where it seems that book was on the program for
consideration. That book is legitimately in this case. It is
part of the case, so far as it was read, and very little of it
was read, very *little of it was offered ; but it is part of the
evidence in this case, and it is right that that book should
be considered for a proper purpose in the case. It was in-
troduced because of the light that it might throw upon the
state of mind of this defendant, and if it is only so used,
and is not used for the purpose of arousing passion and
prejudice in the minds of you gentlemen because of what
that book's views may be so far as they are disclosed here,
then there is no quarrel with it. But to attempt to use it
for the purpose of prejudicing you against the defendant,
by saying that those views were her views and that there-
fore she is a woman who ought to be convicted of the
highest crime known to the law of this state because she
entertained such views, is not a fair use to be made of that
book, in view of the fact particularly that the book was be-
ing read and studied and considered in a circle made up of
the most respectable married women there were in the city
of Waukesha. If it was wrong and a cause of accusation
and condemnation in itself, if it is a crime to read and
review and consider what that book's theories were, it was
no more wrong for her on that score than it was for the
ladies who were going to be entertained and perhaps in-
structed by the review that she wrote and the excerpts from
that book that were to be read. It has its legitimate place
in the case because it may very well be that into the mind
of that girl already subjected to the poison placed there and
the breaking down that had been done by Dr. Roberts, there
was poured this additional poison at a time when her mind

394 XIV. AMERICAN STATE TRIALS.

and heart and spirit were beginning to seek an exit of some
kind.

We may wonder, well wonder, and it has been the cause
of wonder and amusement since the beginning of time, how
a man, evidently coarse, sensual, utterly without spirit and
of not more than average intelligence, is able to drag down
a refined, good, essentially noblehearted woman to his own
base level. If you examine the conduct and demeanor of
the man upon the witness stand here, if you observe some of
the things that he did in this case, it gives a light upon his
character; it gives a light by which we can view and see
more accurately the means or instruments by which this
change was accomplished. I have said it is a fair inference
from the testimony, from what his wife said to the defendant
on the day of the tragedy, that this was not his first experi-
ence of this kind. There are internal evidences in the testi-
mony here that indicate the same thing, and indicate the
incredibly cold, calculating, cautious, selfish and cowardly
nature of the man, that indicates how little chance this
woman had from the very beginning with a man of his kind
and standing. Those evidences are in the letters that he
produces here and in the way in which he produced them,
and the use that he made of them.

It was agreed between them — naturally it would be in an
intrigue of that kind — that it was wise to destroy all letters.
Neither one of them did it absolutely; but it is a fair infer-
ence from his testimony that while the girl, more by accident
than by design, kept these four or five letters of his, he was
coldly, calculatingly and by design getting ready to protect
himself and play safe, no matter what happened. Look at
the way he brings them out, and what he brings — fragments,
where he thinks there is something in the fragment that may
hurt this defendant; letters — and it is a fair inference In
spite of his denial of the fact, and only the letters that he
brought would damage her here. I submit that no living
man can hear him testify and see the way he produces these
letters and the way he handled them, and believe for a

GRACE A. LTJSK. 395

second that he produced all the correspondence of that girl
that he saved.

He comes into court with them here, neatly checked and
docketed, with the date at which they were probably sent,
where it does not appear on the face of them or on the face
of the parts of them that he brings ; brings them in connec-
tion with a memorandum that he has sat down and carefully
prepared for the purpose of enabling him to testify in this
case ; finally admits that he keeps a diary from which he
gets some of the material that goes into the case. It is a
fair inference from that fact, from the way he handles and
produces these letters, that from the beginning he was care-
fully filing them in some kind of a secret filing-case where
he thought they would be safe against the hour of need, if
the hour of need ever came. How many more of these
morgues he has got down there we have no means of
knowing.

Then comes forward his private stenographer who was
cognizant, unquestionably, of the relations between these
two ; and she produces, undoubtedly, every scrap of writing
that she has ever received from this defendant which, by
any possibility, could be tortured or wrung into a means
against the defendant, down even to the little card upon
which there is the merest expression such as goes along with
an ordinary Christmas gift. Thus it indicates that as fast as
any writing whatever of the defendant came into that office
to his stenographer, that stenographer was under instruc-
tions to save and file that stuff, even down to the petty
Christmas card, against the hour when it might be needed.
What chance, what earthly chance, did this girl stand from
the beginning, with a mind that was cold and cruel and
crafty and cunning and far-seeing enough to do that sort
of thing? Her faith in him began to be shaken; she Avanted
to bring the thing up from underneath, put it upon the
table, make an end as decent and honorable as possible.
Apparently he didn't have the courage to accept her view
of it. Her mere appearance upon the stand, and the kind

396 XIY. AMERICAN STATE TRIALS.

of woman she shows herself to be, the kind of life and his-
tory and upbringing that she had and the things she had
done and accomplished, are enough to show that when she
began wanting something more than to be his secret
mistress, had he then said: "No, I have been playing with
you," that would have ended the proposition; but he either
didn't have the courage to be frank with either woman or
else he thought that he could play that game out and enjoy
it a little bit longer, and that when it ended, he would be
able to handle and manage the situation as he had handled
and managed before.

She began to suspect that, "Perhaps I have been the silly
fool ; perhaps this man has been playing with me ; perhaps
even the words by which he won my trust and confidence
were lies not merely on the subject of his love, but, per-
chance, even, he was lying to me when he told me about his
home relations."

Think of him coming on the witness stand and denying
that he ever talked with her along those lines. Did she
imagine it? She told of it over and over before she went
on this witness stand, and she has never told anything that
did not square with her conduct and story upon this witness
stand.

Think of that girl, as she must have been in spirit if not
in fact, lowering herself upon her bended knees to a debased
man of that kind, to try to wring from his reluctant lips
the truth! It was all she wanted. She wanted the truth
either way. If it was a barbed arrow in her heart he was
going to drive home there, there was a time when she could
have taken it without the effect that ultimately came upon
her mind and being. But he reassured her. They had this
meeting out at the County Line. She put the matter up to
him. He played with her, evaded her. She slapped him. I
never saw anything of its kind more comical — if there could
be anything comical in a situation so tragic as this — as that
poor abused man's description of the way he got that crack
in the eye out there at the County Line and the remarkable

GRACE A. LUSK. 397

effect that that blow, which didn't leave a mark upon him,
had in making him see some kind of queer black spots fall-
ing down in front of his eyes for several days afterwards.
There followed a meeting in Milwaukee ; there followed the
determination, if he was playing with her, to take her own
life. There followed the assurance of love and affection
repeated from his lips. Is it any wonder that she took heart
with desperation and believed, in part at least, and clung to
the words that assured her tortured woman's heart, the
words that above all else on earth was dear to her? He had
made her what she was. He was the only source to which
she could turn in her hour of need. She wanted him to tell
his wife. She wanted to make sure whether that wife was
the kind of wife, and their relations as husband and wife
were the kind of relations that he had pictured over and
over again to her. She wanted to put up, to the other
woman the opportunity for choice. If she were deceived,
poor unfortunate girl, she was willing, in that state of mind,
to eliminate herself. How symptomatic of the whole situa-
tion, how characteristic and significant of the strain and
stress, of the effect upon that mind predisposed to weakness
and disease ; ringing how true of the human story itself was
that scene there where, after having wrung from him that
promise that she knew his cowardly soul would give, she
suddenly put down that pistol, throws her arms around his
neck, and says: "If you don't mean it, you don't need to
keep that promise; you can take it back." Whether she
said it in those words or not, she meant: "For God's sake,
tell me the truth about this thing so that I may know where
I stand."

But instead of getting the truth, she got more lies. She
got another promise, a promise that postponed the hour
when it would be all brought up and settled in some way
between the three; when she would know, by the test of
truth itself, where she and the loving affection that she had
poured out at the feet of this man stood; what it signified,
what it represented, what the world held for her.

398 XIY. AMERICAN STATE TRIALS.

Two weeks, stretching to three weeks of anxiety and those
weeks of wonder, those weeks of questioning, those weeks
when at moments she was confident that her faith in him
was well founded; those weeks when, like a gnawing thing
at her heart and in her brain there was the ever recurring
question : I wonder ; I wonder ; what about it ? What have
I been to him? What sort of manner of man really is he?"

Any acting about that that the counsel for the State
talked about this morning? No actress in the world, not
even if she had the talent of a Bernhardt and had been
trained by David Belasco, could have equalled that picture
of the simple power of truth as it fell from the writhing lips
and the tortured body of that girl upon this stand baring her
soul in this case.

What about those weeks? She drew her will. There is
no question about that. She wrote these statements. She
filed them away where they would be found after she was
dead, after she had eliminated herself from the Eternal
Triangle and the situation in which that man had placed her.
She has loved her friends very, very dearly. She has made,
as all the testimony in this case shows, friends, and she is
proud of it. She is proud of her work and her religion and
devoted to it. Then the thought of her father, the hope
that he won't take it too hard; the little consolation laid
upon her own heart that up to this time she has never caused
him very much worry and that she wants that kind father's
heart to forgive her for the great sorrow that her leaving
the world in this way will cause him. Then the outbreak of
her mind : "I just can't live as I have been living these last
few weeks," almost crazed with her heartache and humilia-
tion.

There is another picture not made for the purpose of any
trial but more eloquent than any words could possibly be
and showing the state of her mind during the time that pre-
ceded the 21st of June. That, you remember, was the time
when this man's cowardly postponement had laid her upon
the rack to await his return. I refer to that list of her little

GRACE A. LUSK. 399

treasures ; take it and look at it ; page after page of it, pre-
pared, she says as a typewritten inventory in blank down
at the Y. M. C. A., all the little treasures that she had been
able to accumulate in the years of her toil, the things that
meant much to her, the things that she had kept and carried
about from place to place wherever she went. This is the
woman whom they want you to find here to be a deliberate,
calculating and coldblooded murderess, and she tried to dis-
tribute them among the friends that she loved and who
loved her. She tries with painstaking care to fit the little
treasure that she is disposing of, to get it to the one who
might appreciate it or who, for some reason or other, it
might best suit or fit in with. At that same time and under
that same strain and stress she writes this long typewritten
letter which is Exhibit 82, etc., in this case; that extraor-
dinary letter — extraordinary in what it says and in what it
does not say. I am not going to read it. The one reading
was enough. But I will leave it with you and submit it to
you to ask yourselves the question, when you come to the
moment when you must choose among the five answers to
this problem, whether that letter in itself, standing by itself,
much less when taken in connection with all the other things
in this case having to do with that girl's heredity, with her
manner of life, with her diseased brain, with the strain and
tension that she was subjected to — I will ask you to ask
yourselves frankly and honestly the question whether that
letter itself could by any possibility have been written by
the woman that this girl was when she met Roberts in 1914
and 1915, or whether it could have been written by any
woman whose mind has not been dispoiled with mental dis-
order and disease.

The State has thus proved the insanity of the defendant
in this case. The State has justified the counsel for the de-
fense in the discharge of their duty in this case in putting
in that plea.

Well, the thing goes on. It is indicative of the almost
frantic and frenzied state of that girl's mind on top of

400 XIV. AMERICAN STATE TRIALS.

what she was doing during those few weeks in making her
will and this disposition of her property and these frank
revelations of her diseased mental condition, that on the day
when he came back she could hardly wait in her agitation
to find out whether he had returned to keep his promise.
She got it. He put her off. The time when he could put
that girl off had gone by, although that man did not seem
to know it; he did not know that that poor wrecked and
ruined brain of hers could not be put off any longer. She
insisted. She even went through the poor and paltry threat
that she would see a lawyer if he would not talk to her;
and he, cool, unmoved and calculating and cautious, and
doubtless thinking that he could stave her off again by that
means, puts Miss Blodgett on the extension phone and fig-
ures that as she bluffed me once, I will bluff her by asking
her if she knows the penalty for a threat over the tele-
phone. He is lawyer as well as horse-doctor at that time.
But it does not Avork. That threat is the mere figment of a
moment in the excited and agitated heart and mind and
brain and she says the time has come when this thing must
be taken hold of by that man. "I cannot stand this any
longer. I must know what my fate is to be." She goes
over to his house. The details of their talk merely throws
light upon the difference in their characters, and the dif-
ference in their states of mind. He was suave, cool, col-
lected, not in the least disturbed, as he came to that door.
Can you imagine yourself under similar circumstances com-
ing to the door of the home that sheltered the wife? Upon
that threshold was standing the woman that he had ruined.
He was cool, calm, suave, undisturbed, and even a little bit
put out about it, and rightfully so. He said "Good evening
Miss Lusk!" I wonder how long it had been since he had
called that girl "Miss Lusk." And when that cold tongue
thrust that at her for the moment it was like the sting of a
whip-lash upon her mind. She said she wanted to talk to
him, that he should go home with her ; and again this man,
who had faced safely that pistol in the hands of that girl in

GRACE A. LUSK. 401

the Hotel Wisconsin and then had handed it back to her in
the suitcase, when they got over on the corner of the park
has two selfish, cowardly and despicable thoughts in his
mind, and two only: "Have you got a gun?" and "Have
you destroyed my letters?" That girl had loved that thing
that was talking to her. Any wonder that her brain went
to pieces later on? And then they go across the park and
she asked him whether he will tell his wife — only that little
pitiful request; and he tells her that he has not, he didn't
want to spoil the pleasure or the business on that trip by
telling her — again the selfishness — but he would tell her that
night. And then after he had made that promise and told
her again that he loved her, and loved her alone, she says:
"Won't you kiss me? Won't you kiss me?" They must
have been trembling lips that made that request at that
time of that man. And then he makes perhaps what, to my
mind, is the only honest reply that he had ever made to
either woman since their relations began. He says: "1
don't want to," or "I do not know. My mouth is filled with
poison." Filled with poison! It has never been filled with
anything else. But he kisses her, nevertheless and she tells
him at that time again: "Now, if you are fooling with me,
if you have been fooling with me, if I have been your play-
thing, the mere thing to gratify your animal lust and if
there has been nothing about me that has chained you any
stronger than that, tell me so ; say it ; let me know it, and
that will be the end of it." But he cannot be honest with
her, or courageous. Instead of telling her, as the fact was
that he did not care for her, that he was through with her,
that he was anxious to get rid of her and sending her upon
her way, he again builds up the figment and the shadow oit
hope in that girl's diseased mind and she goes back to try
to rest, but with the assurance in her heart that at least
she has not unworthily bestowed her love. He even asks
her for her sympathy. This was to give it the touch of sin-
cerity, and strengthen that hope and that belief in that
mind that was so anxious to believe what he was telling her.

402 XIV. AMERICAN STATE TRIALS.

Think of it ! And that is the picture upon her mind in the
moment that came later. He asked her for her sympathy
by saying : ' ' Aren 't you sorry for me, for what I have got to
go through with to-night?" And she gave him the true
woman's answer: "No, not if you love me as you say
you do."

To woman's love there is no end, no breadth, no length,
no thickness, no condemnation of any kind, because it fills
the eternal universe where it is real love and once bestowed.
That was the love that this girl lavished upon this man.
And with that assurance from him that his love equalled
hers, that he wanted and cared for her and her alone, she
went back to try to sleep. All this time her friends had
been noticing her preoccupied condition of mind.

She went home that night. She seemed different. True,
she went down and tried to eat some lunch; and counsel
made a great deal of that and doubtless will make a great
deal more. What would you expect her to do ? There were
others there in the house who wanted or were talking about
lunch after she had prepared for the night. She could not
sleep. She had spent the nights tossing upon her bed when
she was not poring over her desk and the disposition of her
property in preparation to take her poor life. So she went
down to try to kill a few moments over that midnight lunch.
It would have been far more significant of a normal state of
mind at that time had she said : "No, I am tired and I need
the sleep, and I am going right to bed." She had behind
her the sleepless nights that racked her upon that bed when
she wooed slumber and it would not come. That night she
didn't go to sleep until early in the morning. She overslept.
Did you ever know a person who lacked sleep who finally
got a few winks of it in the early morning hours that they did
not oversleep a little bit? And what kind of sleep does she
get under those circumstances'?

After she got up she was called by Mrs. Roberts on the
telephone, who asked for an explanation and a meeting.
An appointment was made, not by this woman that the State

GRACE A. LU8K. 403

would have you believe was a cool, deliberate, responsible
murderess, but by the other woman. They made it not at
a place where the gun was, but down at the Y. M. C. A.
Both women start for that place. The defendant gets
there. While she is waiting there an insurance man comes
in and she is visibly agitated. He says that she is agitated.
She tells him the conventional and paltry lie. She has to
tell him something in order to get him out of there because
she is expecting some of her pupils. The appointment is
not kept and pretty soon she sees the reason : She sees
through the window the man who should have been most
willing to have an explanation, to have a meeting and an
appointment, persuading his wife not to keep that appoint-
ment. She sees them go away. She is still in the confident
belief of the night before, resting upon the assurance of his
promise. She writes that almost playful letter to her friend.
That in itself, written in that way under those circum-
stances, shows two things : the state of mind, the up and the
down, the change, the instability of it, and beyond the per-
adventure of a doubt the absence of any premeditation or
any design or intent upon her part to take Mrs. Roberts*
life.

Husband and wife go over to the office. They had a
stormy scene there which lasted practically all forenoon
and continued, to some extent, up at the house. We have
no means of knowing just the details of that. But there is
enough to show that Mrs. Roberts was rightfully indignant,,
to show that she was not in a calm frame of mind herself;
to show that she was agitated, excited and angry, as you
would naturally expect. He played and played with the
situation as he had played with everything, right up to the
last minute, and he played with it once too often.

The defendant has her dinner, eats a little, is agitated
there, goes down to the dressmaker's, but does not take the
interest that she usually does in her fitting. She comes back
to the house and calls up the doctor. She gets from him
again at the very last moment, the lying declaration upon

404 XIV. AMERICAN STATE TRIALS.

which she had been relying that in effect he is faithful to
her ; that he has told his wife the truth.

He says that what she wanted him, Dr. Roberts, to tell
his wife was that she, the defendant, was infatuated with
him. AVhat she wanted Dr. Eoberts to tell his wife and
made him promise, was that they were infatuated with each
other, although that was not the words she used. She
wanted him to make the promise, and supposed that he had
told his wife, as he had told her over and over again, that he
loved her ten thousand times more than he did at the be-
ginning and more than anybody else, more than he did his
wife. If the State is to rely upon the case it has made here
and if that man is telling the truth about what that girl told
him to tell his wife, then, again, you do not need any other
evidence than that in itself to show that she must have been
insane. Women don't ask men to go and tell their wives
that they, the women, are in love with the men.

She got that assurance over that telephone. Just at that
moment poor Mrs. Roberts comes in unannounced. Doubt-
less you can see what her state of mind must have been at
that time. There comes the clash between those two women,
the clash that was due to the actions of the man. One
woman is filled with the truth as she conceives it to be ; the
other woman is filled with the truth as she conceives it to
be. Whether there was truth in what either thought, God
alone knows, because each of them got those contrary state-
ments from the disciple of all lies. There were charges and
recriminations. Mrs. Roberts declared it was not right on
the part of this girl to feel as she said she did toward Dr.
Roberts. She made threats of what she would do to this
girl; that she would have her tarred and feathered, driven
out of town, would ruin her opportunities for a livelihood;
she asked questions as to whether she knew what had hap-
pened before to others and questions as to her condition;
suggestions as to where she might die and how another had
died. This talk between them was strained and doubtless
in anger. The thought on the part of the defendant with

GRACE A. LUSK. 405

her diseased mind went back to the subject of eliminating
herself. If all these things were true, my God, upon what
an object had she wasted her affections ? Was she but one of a
succession and one of those had died in the manner that his
wife had stated. How different the picture of what she
meant to Dr. Roberts than the one that he had so carefully
built up for two and a half or three years, that he had
painted and reiterated and made new to her over and over
again, even down to the night before and the moment that
she had just left the telephone. Is it any wonder that that
girl's brain might reek and reel under those circumstances?
Is it any wonder that she went back to the thought that is
indicated in these letters? Is it any wonder that she
thought: "If I am to be tarred and feathered, if I am to
be driven out of town, if my reputation and my usefulness
and opportunity to live with anything that life means to me
are to be taken from me, why, what is there in life itself?
One thing and one only remains to me ; I can at least, protect
my pride as a woman to the point of showing that I am not
quite the 'damn fool' chasing this man that he, with his
lying tongue, has told her that I was. That much, and that
alone, there is left for me."

She goes upstairs ; she got those letters ; she brought them
down; she showed them to Mrs. Roberts. Mrs. Roberts could
not read them ; they were found upon the table and the floor
there, although Mr. Tullar testified, as was stated, to his
recollection that he found them upstairs in the left hand
drawer. I don 't care, because she might have carried them up
stairs in the shape that they were in ; there is not any dispute
in the testimony of this case, as it comes from the lips of
the State's witnesses who examined that place, that this
identical letter was found upon that table. That disposes of
their clever but very unfair argument that she went upstairs
not to get those letters but to get the revolver to kill Mrs.
Roberts.

When she had done that, one or the other of them said
"we will get the doctor here." Mrs. Roberts goes to the

406 XIV. AMERICAN STATE TRIALS.

telephone ; she comes back in her anger. She begins to
abuse this high-strung and tortured girl, calls her those
names which she knew in her heart of hearts she was not
and never had been ; and then reason failed, was gone ; and
the next she knew she was up in that room, one shot fired
through her body, bleeding, trying to express in that cloudy
state of consciousness what was read in the evidence in this
case. When she was unconscious of what she was doing
and without the possibility of distinguishing between right
and wrong, or knowing what she was doing, Mrs. Roberts
was shot. Then her mind goes back to the time when Mrs.
Roberts came, and the things she said about her. She
wrote, ''This is the work of the man who said he loved me."
There she was. She knew she was shot. "God forgive me,
I loved him." Then as she saw the blood the shooting of
herself had caused in that room upstairs, her woman's train-
ing, the good woman that she essentially was, came to her,
and she said: "Pay Bianca Mills for the things I have
spoiled." "I love you." Whether she meant Bianca, or
whether she meant the man in the case, no one can tell. The
first thing that she hears after Mrs. Roberts fell were the
words of the doctor downstairs to Block: "My God, Mame
is shot." Whether that was at a time after she had shot
herself or before, it may be uncertain in the evidence in this
case, no matter what witnesses may say. Then Dr. Davies
came and she asked him the question: "Where is Mrs.
Roberts?" Consciousness had returned enough so that she
must and did have some suspicion at ieast of what had hap-
pened. From that time on everything that goes on there is
perfectly consistent with her having lost her reason during
the fatal period and between the time that she suffered the
shock of these words upon her diseased mind and high-
strung temperament with all that it had suffered during
previous weeks and the time when she shot herself the first
time. Her testimony is that it was after that first shot that
she found herself or thought she found herself fooling with
the chamber of that gun and fired the gun out of the win-

GRACE A. LUSK. 407

dow. Everything that was said, everything that was done
after that shows what her state of mind was. When she
went np to the hospital she was in pain. She lay there for
two weeks tortured with pain and they say that in that time
at the hospital, to Miss Collins and to Mr. Tullar and to the
sheriff and to Mr. Steiner she said things that showed that
she knew that she shot Mrs. Koberts and that she was not
unconscious at the time, and not only that, but to fill it up
with full measure that she reasoned all about her own state
of mind and consciousness and said she was rational at the
time and even supplied the element of coolness and deliber-
ation.

I have not the slightest doubt that before I got up there
that day she was asked questions substantially similar to
those and doubtless made replies that sounded something
like that; but it does not follow from that that what she
did there she did with reason, knowledge, consciousness,
much less with deliberation and intent. That girl upon that
bed of pain at that time, you know without being told, would
have said anything that any stronger mind suggested to her
in the form of a leading question; but we haven't anything
in this record of questions that were asked her, nor the re-
plies which were made. Wouldn't it have been better and
fairer if they had taken down what was said in the absence
of her counsel there and not have to trust a failing human
recollection upon the most delicate of all subjects, that of
what somebody else said at a time when everybody con-
nected with it is excited? There is too great a chance of
mis-remembering a word here and there. There is too much
chance of mis-remembering the form of the conversation. A
word left out of a proposition, not heard or not remembered,
may change the entire color. Every one of these men in-
tended to be truthful in his testimony, but I will show you
how little reliance can be placed upon the testimony of any
of them.

You will recall that at the time that Mr. Steiner and Mr.
Tullar testified the sheriff, Mr. Morris, happened to be out

408 XIY. AMERICAN STATE TRIALS.

of the court room. They had both testified and testified in
accordance with the facts, that that interview occurred be-
fore I, her counsel, was even sent for ; that I was not present
at the time she is alleged to have made those statements;
that there were in the room the sheriff, Mr. Tullar and Mr.
Steiner; and yet the sheriff following them immediately
upon the witness stand, but not having heard their testi-
mony, in absolute honesty and good faith, insists that that
conversation took place after I got there and that I was
present in the room.

Murder in the first degree that is asked here by the State
is impossible and unthinkable; impossible and unthinkable
by all the evidence in the case ; impossible and unthinkable
by reason of the girl's testimony; impossible and unthink-
able by reason of the things she did and wrote and said long
before the event ; unthinkable and impossible in view of the
plans that she was making for a trip to California; impos-
sible and unthinkable because of the utter absence of mo-
tive. The idea of her killing Mrs. Roberts to take her place,
when she must have known that if Mrs. Roberts disappeared
at her hands it forever prevented any possibility of that
kind! Murder in the second degree is equally out of the
question. Manslaughter in the third degree is possible, has
support in the evidence, is in accordance with the facts —
if you do not believe on all this evidence that that girl was
insane at the time she took her life. But this girl was in-
sane when it happened or she fired these shots in a tempest
and torrent and cyclone of heat of passion and nothing else,
brought on by the tragic situation which had been caused by
the lies that were told by Dr. Roberts. One or the other is
possible. Nothing more is possible in the way of a verdict of
conviction.

You can take your choice of the doctors. The doctors of
the defense, Dr. Powers, Dr. Becker, Dr. Love, Dr. Peterson,
Dr. Harkness, who had known and treated her, say that in
their opinion she was at that moment insane. You cannot
brush their evidence out of the case ; and further than that

GRACE A. LUSK. 409

you can turn to the cross-examination of the State's own
experts, Dr. Studley and Dr. Wegge, and when you pin them
down to it, there are admissions upon their part about what
constitutes that kind of insanity, and insanity under those
circumstances, that makes them witnesses for the defense
upon that proposition, their declared opinion to the bare
hypothetical question to the contrary notwithstanding.
They admit everything that is necessary to be proved about
this girl in order to constitute proof of her insanity. Dr.
Wegge says: "I would not go as strong as that," re-
peatedly, over and over, and was frank and open enough to
say that some of the elements in that question were a puzzle
to him; that it bothered him more to answer them. None
too certain, none too certain are those doctors of the State
about the mental condition of this girl ; and if the doctors of
the State are uncertain, as their testimony clearly shows
they are, and in the face of the combination of the doctors
for the defense as to the fact of her insanity, how are you,
gentlemen, going to say to yourselves in your consciences
that on the whole testimony bearing on that subject there
is not a reasonable doubt in your minds as to the mental
condition of this girl? That you can go on and act upon
that question without that pausing, the hesitation that rea-
sonable men accord to the gravest and most important
affairs of life ? It cannot be done on that testimony.

The case is with you, or will be soon, under the instruc-
tions of His Honor. It has been a remarkable case. I do
not recall another like it in all its features ; and when your
duty is done, you will at least have what poor consolation
there may be for you for the weeks that you have sat here
in confinement, in the thought that you have been a part of
the incidents so unique and so tragic. It is not an easy
thing, your duty in this case. There are those five verdicts.
You will have to choose one of them. I am not making any
plea for this defendant upon the ground of sympathy.
Answer those questions when you get there as you think
they ought to be answered.

410 XIY. AMERICAN STATE TRIALS.

MR. CLANCY FOR THE PRISONER.

May 29.

Mr. Clancy. Gentlemen of the Jury: For you to decide
this case, you must consider the habits and standing of Miss
Lusk up to the time that the serpent crossed her trail. I
see her, a girl of five or six years, blond haired, starting to
school in the little city of Stoughton. There was nothing
very peculiar about her conduct, except that she was reti-
cent, studious, extremely sensitive; and would cry and
laugh in a sort of hysterical manner. She was a sensitive
girl, devoted to her books, an exemplary student, one of that
class of young girls that the mothers in the neighborhood
held up to their daughters as an object lesson worthy of emu-
lation; that was Grace Lusk, the school girl. She finished
her course in the Stoughton school, passing through all the
grades, at about the age of seventeen. Up to that period of
time no tongue, even in the mouth of the greatest scandal-
monger, had ever said aught against her. She leaves the
Stoughton school at seventeen, and goes to Whitewater to
fit herself for a teacher. It was a short year and in order to
show you, gentlemen, that there has been no spot in her
life that we were not willing to have you investigate, we
brought here witnesses from Whitewater who knew her
while she was attending the Normal School there. They
were men and women of the highest character and standing
with whom she became acquainted, because in her career she
sought only the companionship of those who were learned and
who were moral. She is still the same pure girl she was
when she left the Stoughton high school. Then she begins
to teach. She goes to Menomonee Falls. There is nothing
in her record there that indicates that she was not the same
pure girl that she was when she left the Whitewater Normal
School. We brought here some of the best citizens of that
little village who were acquainted with her, men and women
at whose homes she visited; and they have told you what
they thought of the character and habits of Grace Lusk.

You have a pure girl leaving Menomonee Falls. She

GRACE A. LUSK. 4 ] ]

begins down in the grades and she works up higher and
higher and higher in her school work. She needed more
education. She had to earn the money to get it. She was devoted
to books in Menomonee Falls and in Whitewater and Stough-
ton; in fact, books were her companions. She commences
teaching in the Milwaukee schools. We brought here the
people who were associated with her, the men and women of
the highest standing, an honor for any person to enlist them
as even casual acquaintances. She went to the Milwaukee
Normal School and graduated. We brought here her teacher,
Cheever, a man who testified as if he were honored by having
the opportunity to say a good word in favor of his former
pupil. We brought here the principal of the school in which
she taught, a lady advanced in years ; and she appeared upon
the witness stand as if she were only too glad to say a word
in favor of her former subordinate teacher.

She is as pure in Milwaukee as she was when a school-
girl in the schools of Stoughton. She spent her vacations
in taking lessons and studying in summer schools either in
Chicago or elsewhere — all to fit herself for a teacher, not to
fit herself for a siren. Her object was to make of herself a
great teacher. She was not trying to fit herself to lure men
from their families.

Not satisfied with what she learned in the Normal School
she made up her mind that she would take a degree in the
University of Wisconsin and in one year completed a course
that ordinarily takes a year and a half. You can well
imagine the strain upon her mentality to accomplish that
amount of work in that period of time. Is there any ques-
tion about her standing as a pupil, about her moral conduct,
about her virtue in the University? She is climbing along
now in years, because she entered the University in 1911.
She was born in 1878. She commenced to suffer from violent
headaches while teaching over at Menomonee Falls in 1901.
Those headaches persisted and were with her when she was
suffering excruciating pain from neuritis while studying in
the University, the pain running through her arms, rendering

412 XIV- AMERICAN STATE TRIALS.

them useless, impotent, so that she could not even run a
typewriter. This pain persisted for years; this ailment per-
sisted for years.

Now, you have got her out of the University a pure woman.
You have brought her through the city of Stoughton, the
city of Whitewater, the village of Menomonee Falls and the
great city of Milwaukee and her character is untarnished.

Now, these things are significant as enabling you to con-
sider the kind of a person the defendant is, and you draw
your inference as to whether or not such a person in her
normal mind would be apt to become a fiend, a taker of
human life and a self -destroyer, in the twinkling of an eye,
unless some one of the instruments created to control the
mind gave out and the mind ceased to operate. She comes
to Waukesha, makes her home with an old friend, Bianca
Mills. She commences to doctor in the hope of recovering
from the neuritis with which she suffered. It was a
slow process, probably the cure has not been effected at this
hour. She did not do much teaching from 1912, the time
she came to Waukesha, to 1914, excepting a little bit of sub-
stitute work, a few short weeks when some of the teachers in
Waukesha might be called elsewhere or were incapacitated
to teach. To the lay mind the testimony of Currier, her
graduating schoolmate, may not seem of much importance.
She was sensitive, says Currier; she would blush easily; she
would cry easily; she would laugh easily. The person un-
accustomed, not familiar with the symptons of the mental
disorder would not sieze upon these little things as being at
all significant when attempting to determine whether or not
the defendant suffered from mental disease; but when the
history of the parent is read, in connection with those little
manifestations of sensitiveness, the acts of crying and
laughing almost alternately, then you begin to see that at
that period of time her predisposition to mental affliction
was beginning to manifest itself. It didn't wait until the
hour of the fatal shot. The disease was there, gentlemen of
the jury, planted by the creator through the process of trans-

GRACE A. LU8K. 4 1 3

mission from parent to child. Apparently she started out
with the rest of the girls in the schools of Stoughton unhandi-
capped by any mental affliction. In reality she did not
start out that way ; for she had it from the very hour that she
was born. It was there seeping down from one generation
to another; it came down to her; and the little manifesta-
tions which attracted the attention of her schoolmates were
but a cloud the size of a man's hand that to the trained mind,
possessing knowledge of the mental condition of parents,
spelled a diseased mind.

Now, you have a virtuous woman, at the age of thirty-six,
absolutely and unquestionably virtuous. You have a woman
seeking the companionship and association of the most
learned, the highest type of womanhood were her associates.
She was inclined to be literary and studious. She was testing
that diseased mind far beyond its capacity, but she did not
know it. Her anxiety to become a great teacher, to be a
shining mark in the educational world, was taxing that
brain beyond its power of endurance.

She is selected out of a vast number of educators in the
state of Wisconsin as one of five to go to Europe to study,
inspect and report upon the school systems in the most
erudite centers of the Old World. This little backwoods
girl that would laugh and cry in her school days, this little
auburn haired girl that would blush when teased, becomes
a great woman, so large mentally that she attracts the atten-
tion of the greatest educators in the state ; that she is charged
with the duty of going to Europe and doing one of the most
important things a teacher could be called upon to do — in-
spect; and not only inspect, but report upon the school sys-
tems that had been in existence for centuries and centuries.
Do you think if she had been a cruel woman that a position
of that kind would have been awarded her? Do you think
that if she had been one of these gaily bedizening, alluring
sirens, that the great educators of this state who were con-
stantly commingling with her, would not have known it?

She comes to Waukesha, a beautiful little city, with schools

414 XIV. AMERICAN STATE TRIALS.

that are not the inferior of the schools of any other city
of its size in the state. She came here, not to teach, but to
recuperate. She was in no condition to teach. The strain
upon her mentality, put there by herself in order that she
might achieve the goal of her ambition, had left her in a
condition where she could not teach. She went to her own
old friend, Bianca Mills, to live there, to try to recover her
lost health as best she could. She was a frail little creature
there, as testimony shows; never strong. Her appearance
upon the witness stand indicates that. But she had a desire,
she had an aim, a purpose and an ambition and that was to
become a great educator.

Now, gentlemen, is it conceivable that a person having
such an aim voluntarily surrenders it all, and does it when
her mind is not diseased, when her mentality is in normal
condition? Does it occur to you that a young woman who
has lived for a period of thirty-six years a spotless life,
that if her mentality were normal you would find her in a
court room charged with the offense this defendant is charged
with? In reason can you say that such would be the fact?
Apply your own observation and experience to the people
whom you know. Did you ever see a woman in your own
community who had lived a spotless life for thirty-five or
thirty-six years, who had one aim and one purpose in life and
that was to become a great educator, who sought the society
of women rather than of men, who sought the society of the
best class of women, women whose thoughts were exchanged
in the purest and choicest English; do you know of a single
case of a character of that kind, when such character became
a felon, a taker of human life and a self destroyer, unless
something went wrong with the brain ?

The only way, gentlemen of the jury, you can solve these
problems is by applying your own observation and experi-
ence to the facts. That is the way a juror gets at the truth.
When a witness tells a story on the witness stand the first
thing that runs through the juror's mind is: What have
been my observations and experience respecting those facts?

GRACE A. LUSK. 415

And if that witness happens to tell a story out of harmony
with the juror's observation and experience that juror fails
to give credence to that witness because, to him, the story
is improbable.

We have Grace Lusk in Waukesha in a most unfortunate
environment. She comes to this little city a pure and unde-
fined woman, the convalescing student, the woman who, by
reason of her literary achievements, practically unaided, had
made the trip to Europe on that most important of all mis-
sions a school-teacher could be sent on.

We give her to Waukesha; pure and undefiled, a virtuous
woman. She remains in Waukesha pure and undefiled for
two years, and then she crosses the path of the serpent. And
what kind of a serpent was he? A fellow well dressed, a
man who had held a public office, whose name was known
throughout the United States by reason of the advertise-
ments of a patent medicine that he sent out. He was no or-
dinary man to this poor convalescent school-teacher. He had
his limousine and he could take the girls out for a ride. He
sported a diamond ring almost the size of a cent. He talked
glibly about the farms and his prospects. He pictured to
her the great factory that he would eventually establish;
he pictured to her his love for children. Then he com-
menced to tell her about the coolness in his family, how his
wife did not care for him, that he wanted this thing and
his wife wanted that ; there was no love between them ; and
then he employed this young girl to aid him ; first he talked
to her about getting out a text book, which probably con-
tained a number of suggestive things that she never had
thought of before. He commenced to have her handle his
manuscripts, going to the Breeders' Journal and publica-
tions of that kind, all of this manuscript containing sug-
gestive things ; and that was Eoberts ' way of getting around
an innocent girl. If she resented it he would pick up an-
other piece of manuscript that was not quite so suggestive.
He would test the girl by handing her what purported to be
an innocent piece of manuscript, yet containing many sug-

416 XIV. AMERICAN STATE TRIALS.

gestive things; and as he saw the girl fail to object to the
suggestive things, he pressed them stronger and stronger
and stronger, and each document containing stronger sug-
gestions along the sexual line than the one that preceded it.
There is the serpent luring his victim, approaching by
insidious degrees, a species of circumvention that it would
take the most acute mind, or one trained to look after crim-
inality, to discover. The ordinary lay mind, the mind of
the ordinary girl unaccustomed to the ways of the world,
would not be so quick to detect the reason for asking her to
work upon manuscript of that kind. She works upon his
manuscript, aids him in preparing it and wrote several
chapters in the book. She helped him in every conceivable
way. He won her sympathy. The space between the sym-
pathy of a woman and her love is so short that one little
movement takes it over from one to the other. She believed
that he was a much abused man in his home, that he did not
receive the treatment there that he ought to receive and he
kept pressing that upon her mind ; and each time they went
out, the story of his domestic infelicities was repeated.

Now, I am not excusing her, if she were a normal minded
person at that time. She had in her brain at that time the
seeds that were so soon to blossom into crime. She listened
to his alluring tales. Finally an incident occurred which
brought him nearer to his goal. One evening in the Y. M.
C. A. Building in 1915, he had reached that point where he
felt reasonably sure that he could plant a kiss on the cheek
of this defendant without resentment and he did it; and
gentlemen of the jury, that kiss was the fatal shot that
ended the life of his wife. He started it right there. From
a normally minded individual, considering only the purest
things in life, she began to consider those things that are
debasing and immoral. He carried along this course of con-
duct for months and what would you expect it would
eventuate in? She had never had anything to do with a
man before; and now this nattily dressed man, the man of
great wealth, a man who was known the country over, comes

GRACE A. LTJSK. 417

to her imploring her love, telling her how much he thought
of her; that from the first time he saw her she became the
apple of his eye ; and she listened to these stories. But you
say: Why, she ought not to have done it. Agreed. Would
she have done it if her brain were right? That is the ques-
tion. Wrould she have done it? For 36 years she didn't do it.
Why didn't she fall during that period intervening between
her birth and the time she met Roberts? If she were nat-
urally inclined to acts of lewdness why didn't she tumble
down the precipice and into the pit below during those thirty-
six years? Traveling as she has been, across the ocean and
from continent to continent, mingling with both men and
women, isn't it reasonable to assume there would have been
a fall before that time? Now, why did she fall? You know
the operations of the human mind are peculiar. Why do
men do this and why do they do that? Why is not every
man honest, upright, truthful, kind and sympathetic? Why
does this one act this way and that one act that way? You
gentlemen are not all the same. But while you differ as to
character and habits, and have different aspirations and
leanings and likes and dislikes, there is one thing that all of
you revolt against, and that is crime. Now, you would not
expect, any one of you, no matter what emergency might
arise, that you might fall and be compelled to take a place
like this defendant now occupies. You cannot imagine a cir-
cumstance that would bring you to such a place. Don't you
think during those thirty-six years of undefiled maidenhood
that she thought the same ? She could not have been brought
to the point where she could have collected in her imagina-
tion a situation such as confronts her now. You could not
have made her believe it possible; but she fell, and she is
before you ; but if you had told her thirty-five years ago that
such condition as now presents itself would transpire in her
life — I do not know what kind of a shock, you would have
given this poor girl. Think of it ! A pure mind and noble
heart — how you would have shocked her if you had told
her thirty-six years ago that she would become the mistress
of a man like Roberts.

418 XIV. AMERICAN STATE TRIALS.

But she did reach that position. But she did not think
she was the mistress of Roberts. She did not believe that
for a moment. She believed that she was the one and only
person in this world that Roberts loved. He told her that
before he ever had any intimacy with her at all that she
was the sole person whom he admired and loved. She did
not believe she was performing the ignoble duty of a mis-
tress. She believed that she was submitting to the man who
would sacrifice his life for her love — child-like led into the
belief. And he, on the other side, experienced in crime, took
an entirely different view of it, although he knew all the
time that he was leading this diseased minded girl into a po-
sition where she would be overwhelmed with disgrace and
shame. Think of his cold, calculating manner. Gentlemen
can any of you imagine that you could do such a thing as
that ; that you could resort to such subterfuges to gain the
heart and love and sympathy of a girl you knew to be pure ?
And if you did do you suppose you would be on the witness
stand bragging about it ; would be here telling that grew-
some story, characterizing it as bad as it could be done ;
would you be here telling that story to a jury of twelve
men and to an audience of more than a thousand — facing
this critical audience of pure women, as if he were proud of
the mastery he had gained over this unfortunate girl?
Proud of it !

Pleasure trips were taken; hotels visited; things indulged
in that shock the conscience and confound the judgment;
and a pure girl, a hitherto pure girl being one of the par-
ticipants; and then they try to convince you that this girl
who had kept her reputation pure and undefiled, running the
test of social intercourse for thirty-six years, was normally
minded. The ludicrous part of the story of Dr. Roberts
was his claim that he was seduced by Miss Lusk; that he
was beguiled by her from the paths of rectitude which he
had theretofore trod; that she led him up to the vale of
crime. You know we are told in Genesis that "The devil
tempted Eve, and she did even give to her husband who did

GRACE A. LUSK. 419

eat." Men should cast that aside. Experience teaches us
that it is not true in the affairs of human life, or in the
experience of man. If Grace Lusk did what Dr. Roberts
said she did — if she actually made the proposition to him
to go to Chicago with her and do those things that ought
mot to be done, then, gentlemen of the jury, Grace Lusk was
a raving maniac at that time, wholly incapable of distin-
guishing right from wrong, wholly incapable of comprehend-
ing the nature of the act she was inviting the doctor to»
make. But I do not believe such a thing happened. I ami
sure you are sure that it didn't. But he takes her along
until it occurs to her that the matter is not right. She has
several meetings with him and they talk the situation over
and she tells him to tell his wife. "Go home and tell your
wife the story of our crime, of what we have done. Tell
her all." "Yes — yes, he was going to do it. He had it in
his mind." He acted as if it was a thing he ought to do,
but he always wanted the time postponed to some future
date. He put it off. "No, not now. Later on. Not now,
but later on I will take care of that. ' '

And he put it off from time to time. And then they had a
significant meeting out at the County Line. The defendant
became somewhat violent and she struck the doctor. I do
not think it was a very hard blow although he pretends to
have seen dark spots falling before his eyes for several days
afterwards. But immediately afterwards they were talking
and laughing together as if nothing had occurred. Imagine
the state of a human mind that can flit from extreme wrath
to extreme joviality as quickly as that. Do normal minds
do these things? Do normal people get so provoked that
they will indulge in acts of violence, and immediately after-
wards indulge in acts of love? No. If she were normally
minded at that time she would have acted normally; she
would have left him when she hit him and taken the train
home; she would have jumped up and said: "Good by, I
never want to see you again." But instead of that, imme-
diately following this act of violence, there are manifestations

420 XIV. AMERICAN STATE TRIALS.

of love — wholly incompatible with the act that just preceded
It and of such a nature that no one can consider the two
acts together and say they emanate from a person who was
normally minded. But look at the demand she made. She
asked him to tell his wife. And he wanted time. She in-
sisted that he, must go home and tell her that night; but
he begged for time. Time was given until the 14th day of
June, at which time he was to return and tell his wife the
whole story. He went away — yet, I think they were to-
gether the next night after this County Line meeting. At
any rate he went away some time early in June. But before
that there was another meeting down in Milwaukee. Yow
heard the details of that meeting. Do they spell normal
mindedness? Into the hotel they both go, and to his room.
They sit and talk agreeably for an hour. They have supper
together and the usual vein of ordinary concourse is main-
tained. In the twinkling of an eye — think of it, gentlemen
of the jury — after being requested to tell his wife of their
relations, he is told to stand back. Normal minds do such
a thing? No. It was a crazed and infuriated mind. " Stand
back!" The man she loved, "Stand back!" And he stood
back; and the Gideon bible: "Put your left hand on that;
hold up your right and swear to your Maker that you
will tell your wife." And he swore. And immediately
afterwards, like a flash of lightning, the revolver thrown
aside, and her arms thrown around the neck of this man,
pleadingly, imploringly: "If you are not sincere, if you
don't really love me, tell me so now, and I will release you
from every word of your promise. You need not keep that
promise at all. Tell me, oh, tell me, if you do not love me."
Is that the act of a normal mind? A second before, stand-
ing with revolver in hand ; the second after arms around the
neck of the man at whose head she pointed the revolver.
Are those normal things? Is that in accordance with your
experience and observation? No, gentlemen of the jury,
those things emanated from a mind that was crazed —
crazed by the man at whose head that gun was pointed. He

GRACE A. LUSK. 421

had put the poison in and the poison was coming out and
manifesting itself right in his presence in such a way that
it struck terror to his soul. He got away with other girls.
They were not born with the same brain this one was born
with. They probably came from an ancestry that never
knew the diseased brain. But this girl had gone into this
thing with this man upon an entirely different theory than
the one he had advanced. She went into it feeling that he
loved her and he went into it feeling that he might make
her his mistress. The two ideas clash, first out at the County
Line, next at the meeting in Milwaukee. She said to her-
self : "I will put him to the test. Am I your mistress or do
you love me?" And she held the revolver at his head and
he told her he loved her ten thousand times more than he
had ever loved her before. That was the pledge, gentlemen
of the jury: That he worshipped the ground upon which
she walked, and loved her ten thousand times more than he
had ever loved her before. He knew that that mind was
not right; that the person having that mind was kind and
sympathetic, yet, when something occurred that shocked her
sensitiveness, reason was dethroned and she was dan-
gerous to deal with then. Why didn't he say to that poor
girl at that time when she said to him: "If you were not
sincere when you told me you loved me, if you didn't mean
it, tell me now, and I will release you." "My poor dear
girl, I have been deceiving you all the time. I didn't mean
anything. I started out to have a good time with you, as I
had had with many others; I started out to use you as I
had used many others ; I did have a little bit of admiration
for you. I thought you were brilliant and brainy, but I was
not attracted to you because of those attributes. It was
something else that attracted me. No, Grace, I am through
with you; I cannot leave my lawful wife." Do you know
what would have happened? Her life would have been ex-
tinguished. The bullet would have gone through her heart
and there would have been a scene in the Hotel Wisconsin
in the city of Milwaukee ; and Dr. Roberts had every reason

422 XIV. AMERICAN STATE TRIALS.

to believe that such would have been the case. So he lied
and continued to lie and deceive, as he says, trying to
pacify her. What was the use of pacifying, if the brain of
the actress were normal at that time? Why exercise any
acts of pacification if dealing with a normally minded indi-
vidual ? But from the very manner in which she handled
that revolver, from what had transpired in the room, Eob-
erts knew that that revolver was in the hands of a person
whose brain power was not under her control. And he
turned around and told her he loved her; repeated the
pledges of fidelity and loyalty and love that he had so often
made before. She told him: " You probably went into this
thing from the start with a different idea from that which
prompted me. Maybe you did. I never, up to this hour,
thought you did. Maybe you did. Your conduct begins to
show that you had an entirely different object in view."
She could not understand it. She was as confiding as a
child. She believed his story; and now she had come to the
point where disillusionment was coming slowly, imper-
ceptibly, and she tried to brush it back; she didn't want to
believe that the man who had sworn to love her was not
loyal to her. And then think of the preparations she made.
Why, gentlemen, when those little sheets of paper were
brought out here with the names of all the friends, it was
the most pathetic thing you could ever witness — written be-
fore the 1st of June ; sitting down and looking at the paper
one second, and then up into heaven the next, knowing
that that paper was to talk to her friends when she passed
through the Great Beyond. Think of the hours required to
make out that paper. During all this time two thoughts
were chasing one another through her mind: First, "To
remember all my friends." "I give the unexpired portion
of the Chicago Tribune to Jane. I give to Susie this thing, ' '
— the little cushion. "I give my thimble to Carrie." And
so on through a long list, carefully enumerating each one.
What does that show? Does that signify anything to you —
remembering friends? How would you look upon the char-

GRACE A. LUSK. 423

acter of a person, knowing that he was going to take his
own life, sitting down and calling to mind the friends of a
lifetime and then questioning if some of those friends might
not feel just right if overlooked in the distribution of the
few articles her labors had enabled her to accumulate. Does
that mean anything in the nature of the woman? Does it
spell anything to you — tenderly thinking of friends? Why,
to me that sense of the binding tie of friendship manifested
in this way will cause me ever to honor the person who
has such beautiful characteristics. Remember your friends,
even though the tortures of an agonizing mind were almost
prostrating; remember your friends in that hour when you
were preparing the fatal hemlock for yourself; thinking of
friends at that time ; and not only thinking of them, but
doing for those friends the things which one friend would
naturally do for another where the ties of friendship were
strong. I tell you, gentlemen of the jury, such character-
istics are not found in sirens and criminals.

I have been pointing to the little things that showed the
peculiar feminine, lovable characteristic of this defendant.
The State will give you the grewsome story; it will show
the other side, the side which manifested itself through the
result of the diseased brain. It is a pleasure even for jurors
to know that the person upon whose liberty they are sit-
ting, whose future is in the palm of their hand, has some
beautiful characteristics, some which when weighed in the
balance cause you to pause and hesitate in your delibera-
tions, and wonder whether a person having the ties of
friendship she has, the love for friends she has, is a born
criminal. These things, when you go into your jury room,
you will consider. You will also consider the surrounding
circumstances which led up to the tragedy. You will re-
member the absence of the doctor and his wife, his agree-
ment to return by the 15th of June, his failure — which
appears to have been chronic with him. You remember the
anxiety of the defendant respecting the return, her tele-
phoning him soon after he reached his office and getting the

424 XIV. AMERICAN STATE TRIALS.

reply from him that he could not see her; then a request
by her that he see her in the morning; a statement by him
that he could not see her. Now, what was in that girl's
mind when at 8 :00 or 8 :30 in the evening, she put on her
hat and her jacket and went over to the Roberts' home?
What strong, impelling motive drove her to do that ? She
rung the doorbell and Roberts came out. She talked with
him for four or five minutes and then he accompanied her
part of the way home ; and on the way home he renewed his
affections for her. in the most emphatic manner possible ; as
he approached the point where he renewed these affections,
the thought occurred that she had a revolver. Why that
thought? What would she be carrying a revolver for? Why
did that thought enter his mind? If she were a normal girl
and he believed her to be normal, why would the thought
that she had a revolver creep into his mind, and why the
desired assurance that she did not have it? That question
put by Roberts to her indicates stronger than the most
positive statement made on the witness stand that the man
knew her mind was not normal and he wanted assurance
that there would be no danger to him as he accompanied her
across the park. Having received those assurances he again
renewed his love and again pledged himself to tell his wife
of their relations.

Shortly after she reached home, after having been accom-
panied part way by the doctor, she was called up by the
doctor's wife to know where the doctor was. The reply was :
"He must be home by this time." That ended the com-
munication for that day. She did not sleep much that night.
She had not slept for six weeks very much. Her mind was
agitated. The diseased mind was in a tempestuous condi-
tion. Reason was likely to be dethroned at any moment.

The next day she received a telephone message from Mrs.
Roberts in which Mrs. Roberts stated : "I want to see you. "
The reply was: "I want to see you also." "You will find
me at home," says Mrs. Roberts. A meeting was arranged
to take place at the Y. M. C. A. Building, where the matter

GRACE A. LUSK. 425

could be talked over in the privacy of Miss Lusk's office
and definite statements made. Mrs. Roberts came to the
Y. M. C. A. about half past ten in the morning but the ever-
vigilant eye of the husband was upon her movements and
he stopped her and prevented her from going in and talking
the matter over with Miss Lusk. Had she done that at that
time the tragedy would have been averted; there would
have been no tragedy so far as Mrs. Roberts was concerned,
for it was never the intention of this defendant to take that
life. I don't say there would not have been a tragedy later,
but it would have been the tragedy of Miss Lusk taking her
own life.

Now, Roberts knew, when he intercepted his wife, how the
mind of this defendant operated, how reason would take
wings, and that there might be just what happened at the
Mills' home. Mrs. Roberts goes over to where Miss Lusk
lives, comes in just as Miss Lusk had finished asking Rob-
erts whether he had told his wife of the relations between
them, and having received the reply and before she had a
chance to say "Good by," something usually done over the
telephone, Mrs. Roberts, in righteous indignation — I don't
blame the woman at all — in righteous indignation com-
menced to abuse the defendant. She comes in without an-
nouncing herself ; does not ring the doorbell ; comes into the
room in a hurry, and with considerable confusion, and in
that confusion dropped her glasses. I am not censuring her ;
she acted the part of a natural woman, infuriated by her
belief that something was wrong between her husband and
the defendant. She might have talked more mildly and
more modestly. She might not have permitted any such
torrent of abuse; but it is not for us to censure that woman
for what she did. Now, she did not know that she was
playing upon a weak mind, a diseased mind, a paranoiac
mind and a mind that had inherited disease. That Miss
Lusk had made up her mind to commit suicide before that
time is abundantly established by the evidence introduced
by the State. She had made her will, she had disposed of

426 XIV. AMERICAN STATE TRIALS.

her little belongings amongst her many friends, so that the
idea of committing snicide had never entirely left her mind.
She was either to commit suicide or take her departure for
the west and go away from the scene of her fall. Every
preparation she had made, every preparation that she had
anticipated making, everything that she had done up to
that hour, repels an inference that at any stage in her life,
at any period in her existence, had she thought of taking
Mrs. Roberts' life. Her own was in jeopardy. Her thought
was centered on taking her own life — not the life of either
Dr. or Mrs. Roberts.

Mrs. Roberts demands that Grace Lusk, if she has any
evidence showing that her husband had any affection for
her, that she produce that evidence. Miss Lusk thought of
the letters and the itinerary, and she went and brought them
down. Mrs. Roberts then did not have her glasses at that
time, and could not read them, but could read the itinerary.
When the doctor went out to the different fairs to show his
cattle, he would go from town to town and in order that the
defendant might at all times be aware of where he was, he
left his itinerary with her — Watertown, such a time, Jef-
ferson, such a time. He doubtless left the same with his
wife. She saw that itinerary. She went to the phone and
called him up. Before Grace Lusk brought down that itin-
erary she had in her mind the idea: ''I will prove to this
woman that her husband has lied to her, and then as con-
firmation of that proof I will take my life in her presence. ' '
That was the idea. But she saw the revolver and put it in
her pocket and she brought it down. Then comes the tirade
of abuse which you heard from the witness stand. At one
point in the tirade, something snapped. I do not know. I
cannot any more tell you than I can tell you how I wag my
finger, or how the things I am saying come to me. Those
whose life work, part of it, has been devoted to the study of
mental phenomena and its relation to other mental condi-
tions, have given you the benefit of their observations and
experience. They told you that shock sent her into a state

GRACE A. LUSK. 427

of amnesia, automatic amnesia. What she did thereafter
was done automatically; not consciously, but automatically.

Now, do you believe that to be true, that such condition
could prevail? In order to disbelieve it, you have got to
disbelieve the testimony of their own alienists on cross ex-
amination. You have got to disbelieve the testimony of three
honorable and reputable physicians of the city of "Waukesha,
in whose hands you would be willing to trust your own
life, for they testified to that fact ; you have got to disbelieve
the two alienists from Milwaukee; in fact, you have got to
disbelieve every one who testified on this trial.

The fatal shots were fired. Now, counsel says the first
shot was sent through the right side. But if Grace Lusk
fired those shots at Mrs. Roberts right after coming down
the stairway, it would have been on the left side, not the
right side. The counsel reasons further that there must
have been a following up ; that may have been automatically.
That does not destroy the theory of the alienists in one par-
ticle; that could have been done automatically while reason
was dethroned. They say it is proven in the case that the
aorta was punctured at about an inch or an inch or two
above the heart. Three or four alienists and doctors testi-
fied one way on the proposition, and three or four alienists
and doctors testified the other way. But, gentlemen, you
are layman and the counsel asks you to find beyond a
reasonable doubt that one set of doctors, apparently no better
qualified than the other, told the truth.

Now, upon the subject of her mental aberration at that
time, or loss of reason, to the extent that she could not dis-
tinguish right from wrong. You have heard the testimony
of all the alienists that such a condition could be brought
about. You have got the testimony of the defendant that
such a condition existed. Is there anything in the defendant 's
conduct that warrants the inference that she lies? Think
of her laying bare the most grewsome periods of her life,
the most grewsome things in her life, the frankness with
which she testified and told things that fairly made her poor

428 XIY. AMERICAN STATE TRIALS.

frame quiver; and then imagine that she would lie to yon
abont a thing of that kind. She goes upstairs. She shoots
herself. In my opinion that is what caused consciousness
to return in a cloudy condition, not full consciousness, by
any means, but a cloudy sort of a consciousness. And then
with the blood dripping from her self-inflicted wound, she
scribbles onto a piece of paper: "I love him, I love him, I
love him." Is that the act of a normal mind? Do normal
minds do such things ? And then she fills the revolver again,
and is walking around mumbling to herself when Dr. Davies
and the policeman McKay come to that house and they see
her stand at the head of the stairs, calm, immovable, unper-
turbed, a placid look upon her face and the blood gushing
from her self-inflicted wound. And they said the doctor
wanted to go up to treat her wound, but she told him: "No,
you stand back." Now, just think of that situation: One
bullet through the body, clear through, passed in and out
near the vital spot; and the doctor said she was calm, cool,
collected. Can you imagine a normal mind being calm, cool
and collected under such conditions? Draw upon your
imaginations to the very limit and see, gentlemen of the
jury, whether you could imagine a person looking eternity
in the face, with blood gushing from her self-inflicted
wound, calm, cool, collected! There was a little twitching,
slight facial contortions due to the pain from which she was
suffering; and then after parleying quite awhile they said
she said: "Where is Mrs. Roberts?" "She is dead," was
the reply. "Oh, I am so sorry; I am so sorry." And then
the doctor still pressed for an opportunity to come and
treat her wound and she refused to allow him; and then
she immediately turned and makes a facetious remark about
the chief of police, joking in the face of eternity, joking
with a bullet hole through her body and a revolver in her
hand to put another through it. Is that the work of a normal
mind? Do normal minds do things of that sort?

Finally she said to the doctor, while frantically running
her fingers over her own heart: "Doctor, is that wound

GRACE A. LUSK. 429

high enough to be fatal?" And the reply was: "No, I
hardly think it is." And then up comes the hand with the
revolver, and it drops back, impotent, by the side; and then
the doctor persuaded her to sit down ; and she sat down
with the revolver in her lap; and there were two policemen
and one doctor, and they were kept at the foot of the stairs
for an hour and a quarter by this woman that they claim
was perfectly sane. Would there be any danger for a great,
strapping policeman to approach a poor, frail creature like
this, unless her conduct admonished him that she was run-
ning amuck, a crazed mind, an uncontrollable mind, a dis-
eased mind, and that the thing which her actions admonished
him might be done would be done if he advanced upstairs?
Then Miss Lusk attempted to tell the doctor what she wanted
done and she recited to him so many things that he got a
piece of paper and wrote them down and you have heard it
read. Then the doctor came to the foot of the stairs and re-
newed his importunities for an opportunity to investigate
and treat the wound. She refused to allow him to do it ;
said she wanted to die; said "You step aside! You step
aside!" Why did she say that? She said she wanted to
spare the doctor the horror of the tragedy. He stepped aside,
and, immediately, a snap of the revolver and she tumbled
over, bleeding from two wounds, both of which passed
through her body from front to back. Then they took her to
the hospital where she lay upon a bed of pain for a consid-
erable time. She did not want to live. Then came the old
father, bending with age, almost drowned with sorrow. He
came to her bedside, fatherlike, as he had many a time when
she was a child, and he said: "Grace, my daughter, you
must live. You must live. You must do your best to live."
And, gentlemen of the jury, she did live ; and it is the miracle
that astounds the medical profession. Why was she kept
alive ? Was there any purpose in the ways of a Divine Provi-
dence that brought about the preservation of her life ? Why
was she preserved for this ordeal? Why was she kept to
endure the further horrors of this trial and the further hor-
rors of the intervening days and months which elapsed since

430 XIV. AMERICAN STATE TRIALS.

that father insisted that she try to live? It surpasses my
comprehension, why this poor, frail girl, with two bullet holes
through her body, anxious to die, was not permitted to die,
but was kept alive to endure this trial. There was a pur-
pose, but we poor human mortals do not know what it was.

Now, gentlemen, remember that these fatal shots, if fired
by Grace Lusk, were fired in her home ; that she did not go to
the home of Mrs. Roberts to shoot Mrs. Roberts. Take that
into consideration. She wanted that meeting at the Y. M. C.
A. where it would doubtless have been held but for the inter-
vention of this man Roberts. She was also preparing to
leave town and get away from the scene of her fall. Now,
would a person contemplating murder, with murder in her
heart, be doing these things? She had no more intention of
shooting Mrs. Roberts at that time than I have of shooting
one of you now; not a particle. Therefore, I dismiss the
charge of murder in the first degree. I dismiss the charge
of murder in the second degree. In my opinion her brain
was in such condition that she could not commit a crime at
all; and by that I mean that the verdict of "Not guilty
because insane" is the only possible verdict on the evidence
that this jury can bring in, unless it be a verdict of Not
Guilty.

Gentlemen, she is not the first woman to fall. You will
recall the fallen woman way back nineteen hundred years
ago that was brought before the greatest Being that ever trod
this earth. That woman was taken in adultery, caught in
the very act. The Scribes and the Pharisees who were the
learned and wise men of Jerusalem, thought they could pro-
cure from that noble character a judgment which would
warrant them in meting out to this unfortunate woman con-
dign punishment, or that the judgment would be in accord-
ance with the Mosaic Law, that she be stoned to death; and
you will remember when that same Individual, turning to
that critical multitude, said: "Let him who is without sin
cast the first stone." Those Scribes and Pharisees took
flight, leaving that Judge and woman alone. Then said the
Judge to the woman: "Where are those, thine accusers?

GRACE A. LUSK. 43

Hath no man condemned thee?" And she replied: "No
man, Lord." Then He said: "Neither do I condemn thee.
Go sin no more. ' ' And you will remember that same Judge,
when He was eating meat in the house of a Pharisee, when
a woman from the slums of the city whose life was leprous
with sin, stole in quietly behind him and bending over, weep-
ing, washing his feet with her tears, and wiping them with
the hairs of her head; again the Scribes and Pharisees
thought that he could not be the kind of an individual he
professed to be without knowing that a vile sinner was near
him ; but he, divining their thought, propounded to them the
hypothetical question about the creditor who had two debtors,
one a large debtor and the other small ; and he forgave both.
"Which of the two forgiven debtors ought to love their
creditor most ? ' ' And the answer came : ' ' The one to whom
most was forgiven. ' '

Now, these two acts of absolute forgiveness are safe to
follow, because they come from a source the world will never
cease to honor. To smile with those who smile, to sympa-
thize with those who weep, is certain proof of man's nobility,
for the brute neither smiles nor weeps ; neither does he know
the inspiring touch of a noble soul; he neither sympathizes'
nor craves sympathy. But you ask in your imagination how
did this frail woman happen to commit this horrible crime?
How did she happen to do it? I will answer that: When
the creator tells me how a sudden change in the brain power
will convert the mildest creature into a raving maniac in the
twinkling of an eye. The brain is one of the most delicate
cases in the human being, it lies among millions of nerves,
thousands of them so fine that they cannot be seen by the
naked eye and yet each having its particular and peculiar
function to perform. When one is disarranged it com-
pletely upsets natural and normal conditions of mind and
causes one to do things that his very nature revolts against
when his condition is normal.

Why, if all the alienists in the universe should tell me
that Grace Lusk had full control of her will power and her
mind when this tragedy occurred, I would not believe it, be-

432 XIV. AMERICAN STATE TRIALS.

cause the common experience of mankind teaches us that
tender, loving hearts, controlled by normal minds, or normal
minds controlled by tender, loving hearts such as hers was
and is, never break out into exhibitions of brutality which
terrorize and destroy that which they admire and adore.

As you sit before me in full possession of your mental
faculties you probably imagine that you are immune from
any disturbance which would completely revolutionize your
entire life. But you are not. I have seen the strongest
mentalities totter on the throne of reason in case of a sudden
fright, and the most robust forms do the most frightful
things imaginable. The emotions of man are inexorable
taskmasters. They snatch from him his brain power with
barbarous ferocity leaving him a crazed and infuriated being
bereft of every semblance of manhood, save his cold, clayey
form. I have heard men talk, yea, even boast of what they
did in this or that emergency and in a few seconds I have
seen them subjected to the test and heard them admit that
they lost their minds and did the very opposite of what they
expected to do. The tissues of the human mind are not as
stone when confronted with conditions warranting the in-
ference that there is danger to life. Without calculating the
chance, passengers jump frantically to death when cool-
headed persons remain quiescent and see no occasion for
alarm and there is none in fact. In our sober moments, when
nothing occurs to disturb the mind, we are apt to indulge
in these speculations; but when once subjected to the test
and we learn how undependable the human mind is, the
assurance that we would act so and so under such and such
conditions, leaves us entirely and we become a witness for
the theory that fright and shock will dethrone reason and
leave the person in such condition that whatever acts he
performs are performed automatically. Have you had the
experience of seeing a sudden fright come? Something
turns up at once, shocks the mind, dethrones reason, and pan-
demonium prevails. A person gets a sudden fright and the
mind goes.

I know I feel now at this instant of time that I would

GRACE A. LUSK. 433

like to open to you the life history of this defendant. I
would like to show you its fountain seats of virtue which
for thirty-six years overtowered all clouds of suspicion. I
would like to take you through her life history as a student
desiring to learn it from beginning to end and stand by you.
when you read the last chapter except one, for I know I
would hear from your lips a statement of approval that would
come with such spontaneity and emphasis as to demonstrate
no misgivings as to what your judgment of her character
was and is; and then after reading the next to the last
chapter, I should invite you to again read the last one. After
reading the last one which starts with her fall, you would,
after reading a couple of lines, turn to me and say : ' ' Why,
this is not the same woman. This chapter deals with crime,
dissipation, disgrace, while all the other chapters constituting
almost a complete history of the human life are replete with
great literary achievements, acts of benevolence, kindness,
and womanly charm. You cannot make me believe that the
central figure in this chapter is the same ladylike woman and
talented student that I found in all the other chapters. ' ' But
I assure you that she is ; that that poor, frail teacher who sits
here now, and has for days, is the same ladylike woman and
talented student you found in all the other chapters. But
you are still doubtful. That Doubting Thomas, you won't
believe until you thrust your hand in her self-inflicted
wounds. You see then where they are real. You are, how-
ever, persuaded that the last chapter is from real life,
though it reads like fiction. Doubt still lingers, for the
change is too pronounced and rapid to be real. You cannot
believe the story, even though assured it is true.

You read on until that life's story takes you to the cell
where the windows are barred with iron and then to this court
room where you twelve sit in judgment upon the life whose
history you just read. Do you believe that this young woman
who grew to maidenhood with only books as her companions,
who passed through all the grades in the school of the little
city where she was born, who thereafter fitted herself for a
teacher in both normal schools and university, where her

434 XIV. AMERICAN STATE TRIALS.

devotion to books was so marked and her aptness in learning
was so marvelous that it attracted the attenion of all people,
is the same little, frail creature who sits here now downcast,
sorrowful, remorseful, dejected? Can you believe in such a
transition ?

But, she is not the first woman to fall. You remember
the story of Paul stoning Stephen. Paul went to Damascus
and he had a vision and he came back and he wrote something
which mankind has been reading for nineteen centuries.
Now, was Paul, the leader of the murderous mob, the same
person that Paul, the Christian missionary was ? Was David,
the big hearted father of Absalom, the same David that de-
bauched Uriah's wife and plotted successfully the murder of
her husband, his own best friend? Don't tell me that man
is the architect of his own virtue, for he is not. The leopard
can change its spots, the eagle its beak, the rainbow its color,
as easily as man can throw off his inherited traits. Uncon-
sciously they manifest themselves even when he tries to sup-
press them. They are part and parcel of him and he cannot
get away from the natural manifestations of them, no matter
how he may try.

Who is free from sin? Whose character is absolutely pure
and undefiled? "Let he who is without sin cast the first
stone." Are you twelve sitting before me willing to have
the searchlight of investigation turned on all your private
thoughts and acts and an X-ray picture of them made and
hung up in this court room, exposed to the rude gaze of the
curious multitude that assemble here? "Let him without
sin cast the first stone." And let him who has lived an
angelic life be the first one for the X-ray man; but before
doing it let him assure himself that in the excitement of the
moment he has not overlooked some recess in his brain where
the devil has been roosting serenely for years.

The implements used to make character, to give character,
are such and only such as our ancestors had. If the implements
our ancestors used were defective, the workmanship in our
character will also be defective. Grace Lusk built upon the
sands of inherited mental frailty and the winds of seduction

GRACE A. LUSK. 435

cajtie and beat around her structure and it went down with
a tiagic crash; and now she is censured because she did not
build better and wiser than she did, although all admit that
she bailt the best she knew how.

Censure her, gentlemen of the jury? The pangs of re-
morse, more torturing than ten thousand infernos, are doing
it now. Only a few years ago she looked back over a spotless
life and forward to a glorious future. The masters of learn-
ing paid h.wiage to her talents. She lived in an atmosphere
that was pure in morals and pure in language and pure in
obedience to law. The doors of the most esoteric and learned
opened to her and praised her accomplishments. From this
high pedestal sue fell — fell because she was too weak to stand.
I think it was Moore who said: "This wretched brain of
mine gave way and I became a wreck, at random, drifting
without one glimpse of reason or of heaven." "When the
senses are o'erstrun^, " says another, "the thoughts fly out
in mad confusion as if charged with the duty of destruction. ' '

Such appears to have been the condition of Grace Lusk's
mind on that fateful June afternoon when one life was ex-
tinguished and her own almost blasted into eternity. Like
Moore, she became a wreck, at random, drifting without one
glimpse of reason or of heaven.

Think of it ! The deadly weapon fired at close range re-
fused to perform its functions. The bullets plowed their
way through the body, dodging as if afraid to follow the
path newly made to the vital spot. She miraculously escaped
death, only to live to endure horrors infinitely worse than
death. And now they try to convince you twelve that the
brain of the actress was normal during these months when
each snap of the trigger clicked with almost certain doom
to a human life.

Frantically she ran her fingers over her own heart to make
sure that the last snap of the trigger would not miss the
mark. She stood there looking eternity smilingly in the face,
the blood gushing from her self-inflicted wound, a martyr to
the lust of a degraded and brutal man. I feel the lack of
power to describe the agonies through which she passed —

436 XIV. AMERICAN STATE TRIALS.

the ten thousand hells that burned incessantly about her
brain.

The Johnstown dam stood the mountain torrents and
freshets for years and the people below lived quietly and
peacefully in their little city, never for a moment dreaming
there would be any danger of it giving away; but one day
the south fork of the Conemugh River beat against that
dam ; its walls cracked and tumbled and gave away by rea-
son of the pressure of those waters; those unchained waters
rushed in tremendous volumes down the mountain side,
struck the city of Johnstown and swept five thousand souls
into eternity. Now, that river was harnessed by the best
engineering skill that money could procure. It simply set
its teeth and said: "I won't be chained by man;" broke
those fetters of steel and concrete as if they were tissue
paper and threw herself with tremendous fury upon a city
of twenty thousand souls, one-fourth of whom she swallowed
up in her remorseless greed. So this girl built her dam to
hold in check these sinister influences which permeate all
human character. After working on them for thirty-six
years without an hour's rest, she pronounced it safe. Like
the people of Johnstown, she sat believing that there was
not any danger that the flood of passion and love would ever
be strong enough to wash away that dam. But she was
only a child, only a human being. She did not know that
the flood of sympathy and love would strike that dam and
wash it out, leaving her bereft of everything that makes
womanhood noble.

Gentlemen, I am going to recite to you the salient features
of this case though it will be done somewhat at the expense
of repetition.

You start with a pure and undefiled womanhood whom
you take along with you in your deliberations as a compan-
ion, in your minds for a period of thirty-six years. Then
you come to the crossing of the serpent's trail; and there
were no signboards up that would warn her as you see up
at the railroad crossings. You come to the crossing of the

GRACE A. LUSK. 437

trail. You bring into her life an entirely new element, a
new thing, something she never had experience with before.
You start her out in her career from babyhood with the line
predisposed to insanity. Keep that mind with you all the
time. You take that along with you m your deliberations.
The testimony of experts is that the laws of heredity carry
the mental infirmities of the parent down into the child
and that is especially true where it exists on both sides of
the house. Now, those two things you take with you. You
also take with you that the whole experience, the whole
panorama of life, so far as laid out, was laid out for the
purpose of reaching a single goal, perfection as a teacher;
not perfection as a housewife. And to that end and with
that object in view, her whole life's energies had been
centered.

Then you apply to these things your own experience and
observation, and you will say to yourself: "Does my ob-
servation, and experience lead me to believe that a life,
such as I am now considering, turns out to be the life of a
criminal unless something gives out in the brain? Eummage
around through the experiences you have had, and find if
my statement is not true ; that is, that no person with her
mentality — I mean, her disposition and her kindness, of her
aims and ambitions, ever became a criminal in the manner
she has without the giving out of some part of the mind.
How could it happen? It is the beating of the waters
against the dam. She thought, she believed, she was safe.
She had tolerated no thoughts which would render her un-
safe. She had sought the companionship of no one. No
tempter had run across her pathway to rob her. Wasn't
this poor, frail girl justified in believing that she had built
her character upon a rock and that it would stand as long
as the breath of life remained? She never had it tested
before in the way it was tested by Roberts. Every test that
had been applied to it up until she arrived at the age of
thirty-six years she withstood. If you had accomplished
everything along a certain line Until you reached the age of

438 XIV. AMERICAN STATE TRIALS.

thirty-six you would believe and you would be justified in
entertaining the belief, that you could carry it through to
the end. If you had lived a spotless life and your whole
ambition was not to deal with the groveling and the low,
but with the educated and the high and the Christian, you
would believe that you could carry that resolve to the end
of your life. You might not be able to do it. The tempter
might come in. He might get you away from that resolu-
tion. He would not do it if your mind was right. If your
mind were diseased he might do it provided it were diseased
enough and the invitation to change your course did not
open up avenues of horror so revolting that you could not
contemplate them.

Now, you are going to take into your jury room with you
in your deliberations this pure character for thirty-six years,
and then you are going to say in thinking how she fell:
What was there in the mentalities of her parents that would
be likely to cause her to fall? And then you will recall the
testimony of the witnesses who told all about the peculiari-
ties of both the father and the mother and you will remem-
ber how Dr. Wegge hesitated and did not want to answer
and said he was nonplussed when the question was asked
him if certain manifestations did not indicate a diseased
mentality on the part of one of the parents. You will re-
member how absolutely every alienist testified that diseased
mentalities are handed down from parent to child. Con-
sider it in connection with the reasons for her fall and in
connection with the determination of the question of
whether she was of sufficient mentality to distinguish right
from wrong. But the other side will probably say: "We
have got to keep these sirens away from our homes" — as
if this poor, frail girl came within that designation. Is there
any danger that any such woman, lovable in character as she
was, will invade the home of any man, if the man leaves her
alone? Can you see any reason for alarm along that score
in your home? Do you know of any breastwork that it is
necessary for you to build in order to prevent that woman

GRACE A. LUSK. 439

from doing to you what Dr. Roberts tried to lead you to
believe this unfortunate creature did to him? Man is the
bulwark of the home. That home will never be ruined from
his side if he is a man, not a brute. No, there is no danger
of those things. And then we will go on and pick up these
horrible letters. That they are horrible, nobody tries to
dispute. How different from the schoolgirl's letters to Win-
ifred Wymans are the outpourings of Grace Lusk's mind
adulterated with the debauchery put in there by Dr. Rob-
erts ! The other letters written to him were the result of a
mind poisoned with brutal thoughts instilled into it by this
degraded brutal man. From the moment he won her affec-
tion, her sympathy, by disgracefully challenging the love
of his lawful wife, she was his, a slave to his passions, a
worshipper at the shrine of his iniquity. Whatever he
wanted her to do she did, no matter how grossly lewd, no
matter how repellant to her once pure nature. Step by step
he pulled her down until he got her to the bottom; and
when he had her in the pit of despair, bereft of virtue, the
highest prized of all the gifts God gave to her, he coldly
tossed her aside, turned back to his lawful wife and with
the lie on his tongue incited the act which brought the
tragedy. Truly the wages of sin are death. The Wymans
letter represents the schoolgirl, Grace Lusk. She goes down
to his low, lewd level and indulges in the language he under-
stands the best. When you go out and tell a story to a
young girl of the coldness in your home, of the want of
sympathy and love in your wife and keep pouring that story
in her ears until the fountains of sympathy commence to
bubble up and you win the love of such a person by such a
course, I tell you you have aroused a condition there which,
when suddenly broken off, may well eventuate in a calamity
such as we are trying now. You have aroused passions and
feelings that were unknown to that person. You have
taught that person to think differently from what she had
been in the habit of thinking. You have taught her to be-
lieve that there is no sanctity in the home ; that it is nothing

440 XIV. AMERICAN STATE TRIALS.

but a cold, legal bond that unites one person to the other.
Think of his affecting craving for someone to love him, to
cheer his life and to be his companion! Gentlemen of the
jury, these were the mysterious spirits that played upon
the strings of that infinitely mysterious instrument, Grace
Lusk's soul. Then it brought confusion like a mighty river
washing away the collected virtues of thirty-five years of
undefiled maidenhood, breaking her upon the rocks that she
had used to dam up her character and prevent just such inva-
sions as occurred at this time. Oh, it is hard work when you
consider the beginning, and this period in the life of this
girl. She is not your daughter. She is somebody's daugh-
ter. Maybe you have one. Maybe you are hoping that you
will never have occasion to offer a word of apology in behalf
of that daughter's conduct. Don't you think Dr. Lusk lived
for thirty-six years in that same frame of mind? He never
dreamed for a moment that the hour would ever come when
he would have to offer one word of apology or present a
single extenuating circumstance in mitigation of what his
daughter might do. But he is here now, aged, weak, broken-
hearted. In his sight and as he views the situation, that
girl is invested with every characteristic that goes to make
up noble womanhood. He came here not to tell the story
of her inheritance or to tell you about his mental weakness
and the mental weakness of the mother. He came here to.
be where you would like to be if your daughter occupied
that place. The parental affection which binds parent and
child would impel you to sit by the side of the unfortunate
daughter; and especially would that be true if you were
conscious all the while that her fall was largely due to the
mentality which she inherited from you? He bears the
weight of her burden because he, even more than the alien-
ists, knows the weak mind, the diseased mind, that that
poor girl inherited from both father and mother.

He is performing the sad, sad duty of a loving parent, a
duty which is always performed by every father and every
mother imbued with the spirit of paternal and maternal love.

GRACE A. LUSK. 44

You have a duty to perform too. It is not a pleasant one.
It is hard. You have got on the one side the State clamor-
ing for a verdict of murder in the first degree; that is, that
she coolly, deliberately and with malice aforethought, killed
and murdered Mrs. Roberts ; that she did it in a cool state of
the blood; and that she did it without being infuriated;
that it was a calculated, coldblooded killing. That is what
the State contends for.

In a letter to Winifred Wymans written on the day of the
tragedy the defendant talks of adopting a Belgian babe and
those things which sway the emotions, the noblest emotions
in man, those beautiful emotions that you and I never fail
to admire and never fail to honor, appear in that letter to
Winifred Wymans. Do those beautiful sentiments, those
beautiful exhibitions of the desires of the heart indicate that
at that time that same heart was nursing the desire to com-
mit coldblooded murder? Take those facts into considera-
tion. Give them the full measure of consideration which
their nature demands. I cannot see wherein there has been
omitted any matter or fact which in all human probability
might have a bearing upon this case. I imagine that counsel
who will follow me will pick up these contaminated letters,
letters the outcroppings of a debased mind, and argue from
them that this defendant was the kind of a person tne lan-
gauge of those letters seem to indicate that she was. I
cannot understand for the life of me how the person who
indited the beautiful distribution of her belongings, who
wrote it out distributing her little keepsakes among her
friends, could turn around and in the next breath write
that long typewritten letter wherein. the words "triangle"
are used. How could she do it if she were normally
minded? How could the brain that was thinking about the
Belgian child that had in mind such beautiful things, be
transformed to the gross lewdness that appeared in that
letter, the one going out to a friend expressing sentiments
which touch the human heart, the other, never mailed, ex-
pressing sentiments from which you and I revolt. The two

442 XIV. AMERICAN STATE TRIALS.

are not written far apart; the one expressing the revolting
sentiments having been written almost simultaneously with
the document apportioning her little belongings amongst
her friends. There must have come a change. You find it
written out apparently with deliberation and yet it was
never mailed. What came over the mind of the writer ? Did
the beautiful thoughts that were expressed in that instru-
ment distributing her little keepsakes among her friends
stand and revile the brutal, degrading and inhuman
thoughts that you find in Exhibits 82, 83 and 84? Why
were they not sent to Mrs. Koberts? Was there not a ra-
tional moment after the writing of this letter represented by
these exhibits, in which Grace Lusk was able to apply to
that letter the reasoning, the sentiment, the ennobling prin-
ciples which had guided her life for thirty-six years? Then
the next question arises : If that be true, why was not the
letter torn up ; why was such a letter left among the docu-
ments and letters of this woman? In reason, you cannot say
that that was a tribute to the high principles of morality
for which she stood for thirty-six years. If the mind had
been like it was for thirty-six years, that letter never would
have been written. The fact that it was written is a cir-
cumstance infinitely more persuasive than the testimony of
alienists. Would she have dreamed of writing that letter
at the age of thirty-six years? And she gets to the age of
thirty-nine years three years afterwards and she sits down
at her typewriter and writes a letter so repugnant to every
principle she ever stood for, so contrary to her nature, so
at war with all the things that she held near and dear to
her that you cannot explain it at this time upon any theory
other than a diseased, morbid mind. A normal mind doesn't
write such things. A normal mind doesn't carefully pre-
serve those things among its archives. A normal mind
doesn't leave those things where they are likely to fall under
the eye of the public. At that time she was contemplating
the taking of her own life. At that time she was thinking
of sending her soul to its Maker. She wanted to go there
leaving behind the pure and unadulterated reputation she

GRACE A. LUSK. 443

had earned during thirty-six years of undefiled maiden-
hood; and she writes a letter the nature of which was well
calculated to rob that reputation of every element of great-
ness, of every element of endearment and to contaminate it
so that it might appear that the persons looking through the
documents that are left when she passed away might draw
the inference that this girl was a debauched, depraved and
craven wreck.

Now, you must look at that letter from the standpoint of
the fact that it was to be left among her effects when her
life was no more. Tell me that Grace Lusk, the noble school-
teacher, the talented, graceful woman, the woman who had
sought the companionship of the purest and best women of
the state, if normally minded intended to leave a relic of
that kind behind her? She wanted to leave among her asso-
ciates the appearance of a spotless life. She wanted to go to
her last resting place the honored and respected teacher she
had been through life. That would be the natural desire.
That desire would manifest itself in the natural way if she
were normal minded. Not being normal minded, you find
among her effects letters, which, read according to their
plain import, make her a fiend in human form. Do normal
minds do those things'? Do normal minds toy with their
own reputations in that way? Do normal minds asperse
their own character? Do normal minds leave behind them
such evidence as to cast a shadow over their whole life?
No, that letter is the outcrop of an abnormal mind. Com-
pare it with the letter where she says: "I want to adopt a
Belgian child because I am poor and it don't cost me so
much to keep it." And then immediately turning around
and disgracing herself and branding herself with the mark
of Cain which would stick to her memory as long as the
most cherished friend would entertain recollections of her
existence. That is the act of a crazed and infuriated mind.
And then think of the language she uses, so repellant to
her once pure nature, so different from that which she had
manifested while in Stoughton, as a schoolgirl, in "White-

444 XIV. AMERICAN STATE TRIALS.

water at the Normal School, in Milwaukee, on her trips to
Europe to study and inspect and report upon the school sys-
tems in the most erudite centers of the old world. Do you
believe that that letter was written by a sane woman? Do
you believe that this talented school-teacher who had won
the love and affection of the greatest educators of this state,
coolly designed to leave as a relic of her fleeting existence
a document that would tarnish her reputation so black that
it would repel every friend that wanted to take a glance at
it for as long as it lived? Do you believe it? If you do, you
have a peculiar idea of the operations of the human mind.
Preparing for death, preparing to snuff out the life, prepar-
ing for the most serious of consequences that must befall all
humanity! And then she wanted to leave behind her a let-
ter covering her with disgrace and shame, so that the world
might read it and thereby take from a glorious career the
many wonderful achievements which had brought the actor
to the highest pinnacle of educational achievements and rec-
ognition that a woman could hope to attain.

Gentlemen of the jury, when you go to your jury room
you will have all these facts and circumstances to consider.
It is not every swallow that warrants the belief that spring-
time has come; so it is not every morsel of evidence that
warrants the conviction as to which way a case ought to be
decided. You have for thirty-six years a pure character;
you have got the serpent's trail and its crossing; you have
got the diseased mind ; you have got the indicia of the dis-
eased mind in these grewsome letters which I have not the
slightest doubt will be rolled under the tongue of counsel
who is to follow me as a delicious morsel. When you hear
him dwelling upon those, just go over in your mind that
thirty-six years of pure life, and say: "It is contrary to
human experience that such a life should end in this way. ' '
Human experience is that such a life goes cheerfully on in
the even tenor of its ways until death removes the person
living it. Ordinarily it would make no change, but and
except there was something wrong in the mind of the indi-

GRACE A. LUSK. 445

vidual who was running that life. If the brain were dis-
eased, and the conditions which we claim prevailed when the
two shots were fired at Mrs. Roberts existed in fact, then
it don't make the slightest particle of difference that her
mental aberration at that time and the refusal of mind to
operate at that time, were brought about by intense
anger or shame or otherwise. If that mind were diseased
and reason dethroned you are not concerned about the ele-
ments that produced that condition. All you are concerned
about is this: Was reason, in fact, dethroned at the time
these bullets were shot? It don't make any difference if it
was brought about largely by reason of her illegal relations
with Dr. Roberts; but if, as a matter of fact, reason had
gone to the winds when these bullets were discharged from
that revolver, then this defendant is not guilty because in-
sane and irresponsible for her acts.

I don't recall a case of this length that I have ever tried
where I received closer and better attention. It is a tribute
to me, regardless of how you decide this case; and I want
here and now to thank each and every one of you for the
very kind, considerate attention you have given to this case ;
and whatever verdict you may bring in, even though it may
not be entirely satisfactory to me, I will go away from Wau-
kesha with the consciousness that the twelve men before me
have performed their duty as they saw it by the light of the
evidence.

Don't be in a hurry to perform your duty. Deliberate
upon it. Give it the consideration its nature is entitled to.
You will be wandering around in a maze of doubt. You will
hear conflicting expressions upon the evidence by opposing
counsel ; but, after all, it is for you in deciding the facts to
decide whether it is a case of murder in the first degree,
murder in the second degree, manslaughter in the third de-
gree, not guilty, or not guilty because insane. It is for you
to determine that question yourselves and there is not another
human being on the face of the earth that can do that except
you twelve. What one among you is going to be able to say

446 XIY. AMERICAN STATE TRIALS.

that she is guilty, without having the words stick in his
throat and his conscience goad him forever afterward?
Where is the man in the twelve who is going to prepare that
fatal hemlock for this unfortunate girl and put the hasp
on her arm? I will leave it to you.

MR. CORRIGAN FOR THE STATE.

Mr. Corrigan. Gentlemen of the Jury: The representa-
tives of the State of Wisconsin came into the trial of this
case fully conscious of the fact that they did not have a
pleasant duty to perform. As the representative of the State
now delegated to close this case, I am fully aware that my
duty is, in some of its aspects, disagreeable. However, I shall
meet it with all the honor and courage at my command.

My duty in behalf of the State is not materially differ-
ent from the duty of each and every one of you, for we
are each a part of the machinery of justice under the law of
our State, to enforce the law and protect society against
crime.

We have heard a great deal about sympathy. I do not
know, gentlemen of the jury, of any man who has a deeper
or more abiding sympathy in his heart for any person who
has done wrong, be it man or woman, than I have. I doubt
if there is any living human being who indulges greater sym-
pathy than I feel this minute for this defendant. I be-
lieve you appreciate that in the light of my conduct in this
trial. But it is your duty, the duty of each and every one
of you, as it is my duty here, to do that which is right. We
must put steel jackets on ourselves that we may not fail.

I do not want any verdict jn this case in behalf of the
State, for the sake of any mere personal victory. If I had
one cell in my brain that conceived any such ambition, I
would be ashamed of myself, not only now, but during the
life God gives me to bear my further burdens, and perform
my further duties.

We are living, gentlemen of the jury, in a country where
human life is held to be the greatest of ail human rights; in

GRACE A. LUSK. 447

a nation that regards the life of a human being more sacred,
more precious, than any other God-given thing. We are
living at a time and in a generation, when, because the lives
of American freemen have been murderously taken on the
world's highways of commerce, we have been carried into the
worst holocaust of history. The people of our own dear
America so highly regard human life that we stand ready to
make every sacrifice of blood and treasure to punish for its
taking. We have but to live to those high ideals to perform
our duty in this case.

This is not a complex case. True, it is an important case.
It is important to the State of Wisconsin; it is important to
its citizenship ; but there is no complexity about the essential
and vital facts here. This case is a simple A. B. C. propo-
sition.

We have heard here a great deal about virtue. Tributes
have been paid to the virtue of womanhood. With all those
sentiments expressed so feelingly, I agree. We have heard
profound appeals for sympathy, and with those I agree.
Counsel have indulged in tirades against Dr. Roberts, and in
scathing denunciation of his criminal conduct with this de-
fendant. With most of that I agree. If anyone thinks I shall
stand before you to justify his actions with this defendant, he
will be as greatly mistaken as he would be if he should con-
ceive the notion that I shall defend her actions with him.

We have heard introduced into the arguments in this
case the "little girl," the diamond rings, and the limousines.
Why? Where is the "little girl," and what have diamond
rings and limousines to do with this case ? Their plan is to
make that which is an A. B. C. proposition, a complex and
entangled one.

There is one thing, however, that we have not heard about.
I shall not drag it into this case because I seek to arouse any
prejudice, and I caution you to that end, but I shall tell you,
gentlemen of the jury, that as surely as you sit there and I
stand here, there is a picture that has not been painted. We
haven't heard anything in this case about the little grass-
covered grave up there on the sunny hillside, where lie the

448 XIV. AMERICAN STATE TRIALS.

sacred remains of the victim of this tragedy; she who in life.
counsel is obliged to say, was an exalted, able, and a noble
woman. We have not heard very much in the arguments of
counsel about the pathway of those bullets which separated
a soul from its earthly abiding place ; and gave it flight
heavenward. We have heard little of the fact that a life was
blotted out in its prime, at the time of its greatest usefulness
to society — a life which God had given to the service of
humanity.

The last counsel speaking for the defense told you that I
would attack the reputation of this poor woman who is on
trial. The first one made no such statement, because he
knows me better. I do not want — the State of Wisconsin
does not want — a conviction in this case because of any wrong
that Grace Lusk committed with Dr. Roberts during those
two years of secret intimacy. Roberts is not on trial here for
that, nor is she on trial here for that. The history of their
vulgar performances has been disclosed in this ease, not be-
cause we desired to attack her reputation. We do not seek
or ask her conviction because of her record. She has made
her own reputation and she has recorded it in her own hand-
writing. The defendant and Dr. Roberts, both exercising
skill and strategy, had been able to keep their intimate and
illicit relations a secret for over two long years. This terrible
tragedy that blotted out this life, tore from this guilty pair
their hidden secret, and with it their cherished reputations.

But the only purpose those facts have in this case is to
explain the reason for this crime — the motive. They disclose
the reason for the forming of the intent to commit the
tragedy. That is all. We do not want her conviction just be-
cause she proved to be a bad woman during those two years.
I shall not even condemn her, but I do pity her, for her
wickedness which led to this tragedy.

We are trying a murder case here, and if we can sweep
these vulgar cobwebs from our minds, our task is easy, and
our duty is plain.

Now, we have heard a great deal in this case, in the argu-
ments of counsel upon the other side, about a romantic court-

GRACZ A. LUSK. 449

ship or love affair. Why, gentlemen of the jury, to hear
the counsel on the other side, with all their pleas for sym-
pathy, all their gems of brilliancy about virtue and love, and
all its sacredness and blessedness, you would think that this
affair between these two folks was made in heaven. But
that is just a word picture. There are no facts in this case
to justify such argument. The fact of the matter is, under
the evidence in this case — and that is what we are to abide
by, what I am bound by, and shall be bound by — that this
love affair never had a holy or sacred thought to sustain it.
It started in defendant's office in the Y. M. C. A. Building,
right in her own schoolroom. I am going to take her con-
struction of what happened there. I don't know whether it
is the true one or not, but it is at least fair to her to take her
construction of it. I want to be fair and I am going to put
myself in a jacket of steel to keep myself fair.

She says that he leaned over the desk and kissed her.
Now, remember she was not a little girl. That is all non-
sense. She was a woman, a woman of broad and compre-
hensive training, a woman of accomplishment, a woman who
has been abroad, and a University graduate ; a school teacher,
thirty-six or thirty-seven years of age, as she sat at that
desk. There was no little girl about it at all. She did not
even make the time-worn protest of a willing maid, but
merely said, when he kissed her, "You ought not to do that,
because you are a married man." Then she got up, and
they embraced and kissed each other. Now, that is a won-
derful romance, isn't it?

I haven't heard anything in the testimony about the allur-
ing tales counsel talked about that happened before that
kiss. Their actions were commonplace amongst the vulgar,
and scandalous, to say the least. Soon after this first kiss,
they went to Chicago. Now, blot out of this case, for the
sake of fair argument, the invitation to go that Dr. Roberts
claims he received from her. Be fair with her. Take that
out of the case, believe her side of the story — that he invited
her after this kiss, when she said: "You must not do that,
because you are a married man." She didn't have to go to

450 XIV. AMERICAN STATE TRIALS.

Chicago. There was little time for these "alluring tales"
that counsel talked about. She knew what she was doing
when she went to Chicago, antl yet you would think, to hear
counsel on the other side, that she was some little country girl
about sixteen years of age who had been lured off down to
Chicago by some old timer who alluringly told her about the
big elephant she would see when she arrived there.

There is another circumstance that takes all the romance
out of this "soul mate" business. I will not speak in detail
about it, because there is no use in being foul. We have
heard this thing all the way through, and you know it just
as well as I do. It will suffice to ask, where is the deep
and abiding love that can have its origin or celebration in a
single seated automobile, out on a dark country highway?
Talk about romance, and love, and virtue, and sympathy, and
pity. It is all a nightmare to decency. This relation con-
tinued from that time on. In that respect their stories agree.
Roberts testified that he called her and she called him —
that he suggested to her, and she suggested to him. He
planned some occasions and she planned others. She testified
that they had a mutual agreement that they should do just
as he says they did. There is no substantial difference in
their respective confessions.

Now, gentlemen of the jury, assume that as a result
of this illicit affair between these two folks, Eoberts had shot
his wife; suppose that he was the one that persisted in hav-
ing a separation take place in his family, and had taken the
foul means that this defendant chose, to eliminate "one
corner of the triangle," where would he be? Would he have
any defense? Oh, yes! I suppose he could say that he was
unconscious during the two or three minutes in which he was
doing the shooting ; that he was in a state of ' ' automatism, ' '
or something of that kind, while the pistol worked auto-
matically, just as defendant's did.

Gentlemen of the Jury, if Eoberts would have had no
chance under such circumstances, why should the woman
in this case be treated differently?

I repeat for the sake of clearness and positiveness that the

GRACE A. LUSK. 45]

story of these foul relations was introduced in this case
simply to let us understand the motive for this crime. The
evidence shows that this defendant, after nearly two years
of designed and mutual secrecy, finally determined that she
would find a way, as she says in her own language, in that
famous and infamous letter, "to take the throne of Mrs.
Roberts." So we have, gentlemen of the jury, and we all
know it without statement of greater detail, a motive estab-
lished in this case. This is the secret chapter that Mr. Clancy
left out of the book he wrote during his argument — a secret
chapter that covered a period of two years. He expunged
this important chapter. We will have to restore it in order
to understand the tragic chapter. This restored chapter
shows the motive; then when we read the tragic chapter in
the light of the motive, we understand the whole book a good
deal better than we did when Mr. Clancy reviewed it.

Now, a great deal of time has been spent by counsel upon
the alleged differences between the testimony of the defendant
and the testimony of Dr. Roberts. I care nothing about
that. The relations existed. "We don't care who started
the affair. It existed. It was between grown-up folks who
knew what they were doing, and they were both parties to the
crimes that they committed. They were both in it. They
were mutually in it and desired to be in it, as is plainly mani-
fested by the letters of both. Of course, the defendant, a
woman of great ability, of great training and education, a
woman who understands and can exemplify the dramatic
art, makes a much different impression in telling the same
story that Dr. Roberts told. Dr. Roberts, cold blooded,
cast steel fellow that he is, horrified with all these awful
things, that make a man shake in his boots, tells his story in
such a way that it sounds wholly different. But what are
the- real differences in these stories?

The differences are these: First, he says he does not
know who kissed first. I think he does, but what figure does
it cut? The motive is just as plain in either event. Second,
there is a difference as to who proposed the first trip to
Chicago, but how does that effect the motive for this crime?

452 XrV. AMERICAN STATE TRIALS.

Third, there is a difference between them as to the degree of
love manifested by Roberts. She says he continually told her
that he loved her ten thousand times more than he did any-
one else in the world; and he says he told her he loved her,
and he thought once that he did. On the other hand, the
letters that he had written in 1915, when this situation be-
tween them was the warmest it was at any time, are cold
blooded letters. They read just like the love letters you
might expect a horse doctor to write. However, her letters
show she wanted him in spite of his coolness, and the motive
is still as certain and plain as the sun on a cloudless day.

Now, there is another point that they differ on, and that
is with respect to his efforts to get away. The letters that
he writes prove that he was trying to get away. But what
difference does it make about this murder whether he was
or was not ? The relations existed between them, and it is very
manifest that she wanted him, whether he was trying to get
away or not; it is equally clear that she designed and cal-
culated and laid plans to get him, whether he wanted to be
caught or not. Why, she openly states her motive in this
letter she wrote on the typewriter, wherein she said that one
point of this triangle ought to be removed, and that the two
who remained should be the ones whose love was mutual.
You cannot read that letter without clearly getting the idea,
contrary to her testimony upon this witness stand, that the
person in that triangle the defendant desired removed was
none other than Mrs. Roberts.

This motive developed slowly but surely; both of these
people bore good reputations before this affair of theirs
started. They both wanted to retain those reputations, and
they both tried to by keeping these relations secret. They
talked about secrecy. They agreed not to sign letters. She
wrote a long letter to him about a trip which was to be taken
to Chicago, guarding him for the sake of caution — urging him
to use caution in order to keep these relations secret. Why?
Because, up to that time, she wanted and desired secrecy;
she wanted to preserve her reputation. But commencing
about the 9th of March, 1917, apparently at a time when the

GRACE A. LUSK. 453

doctor was trying to put a stop to these criminal relations,
she started to force the issue. Thus developed the motive
for this tragedy.

But I will tell you, gentlemen of the jury, this affair be-
tween these folks was no romance or real love match. It
was vulgar, and they both knew it. Their correspondence
and their methods show that they both knew it. It was just
plain vulgarity upon both sides. It was a nightmare.

It presents a situation quite parallel to that of the city
farmer who used a tractor and a gang-plow to cultivate the
violet bed. These people made a violet bed for themselves,
and cultivated it with like folly, but they had no right to
expect, and neither one did expect, that the violets that grew
in that bed would all be blue "because blue happened to be
a pretty color."

In the course of events, to-wit: on March 9th, 1917, when
they were at war about the trip to Chicago — he having re-
fused to go — she wrote this foul and infamous letter. The
defendant told Roberts she had written such a letter, and
that she had it ready to send to Mrs. Roberts if he did not
agree to go. Of course he went. She told him afterwards
that she had kept that letter ; and true enough, it was found
in her room immediately after the tragedy.

Now, gentlemen of the jury, I am not going to read the
whole of that letter. I am not going to unload these "choice
morsels" from under my tongue that counsel talked about,
but I am going to read some parts of it — not the most vulgar
ones by any means. Now, mind you, gentlemen of the jury,
she claims upon this witness stand that she was not pursuing
Dr. Roberts. But she says in this letter of March 9th, in
referring to the subject of pursuit — "I thought it was all
quite a good joke; in fact, it would not have occurred to me
to take the situation seriously if one night at the Baptist
Church at some supper or fair, you had not come up to us
when we were talking in the most innocent fashion imagin-
able, and rushed him away. You didn't do it in a courte-
ous manner — well, no, rather — I vowed thereupon to get even
with you for your discourtesy, and I have."

454 XIY. AMERICAN STATE TRIALS.

And, gentlemen of the jury, she told at great length and
with deliberation in this letter just how she had gotten
even. However vulgar this letter may be, it has the virtue
of being clear, plain and unambiguous. It is written in in-
telligible and understandable language. It is plain English.
It is a sorry thing that it could not have been misunderstood.
She deliberately put it down with her own typewriter, in
her own room and in black and white, and it is here now to
tell the story of the simple, though vulgar truth, the motive
for the crime.

On this trial, after backing away and evading, she swore
that this statement in her letter, that she had gotten even,
was not the truth. Why should she tell an untruth then?
Why would she not tell the truth about it to Mrs. Roberts,
if she wanted to lay the foundation for the separation of
that family? The truth would separate them, if it were told.
She wanted Mrs. Roberts to understand that she had been
getting even with her because of some discourtesy that Mrs.
Roberts, according to defendant's assertion, had shown her
at the Baptist social, so she says: "I vowed thereupon to
get even with you for your discourtesy, and I have."

What had she done to get even? She had borne these
relations to Dr. Roberts. That is manifest. And this letter
says so. Then she says : ' ' Only I hurt myself in doing so. ' '
I asked her on the witness stand what she meant by that,
and then, notwithstanding her denial that she had gotten
even, she gave the answer, which is no doubt the truth:
"I referred to my relations with Dr. Roberts."

Now, gentlemen of the jury, it has been said in the
argument for the defense in this case that we have all
been sinners. Counsel waved his hand in a complete circle
when he said that, so that I was quite sure I was included.
His statement accords with my recollection from the time
of my early Methodist training. Counsel argued that be-
cause we were all sinners, that that ought to work an
acquittal in this case. Gentlemen of the jury, if that kind
of argument should prevail in our courts, when the lives

GRACE A. LUSK. 455

of innocent victims have been blotted out through the cruel
hand of those designing to kill, what would become of
our security? "When would your lives be safe? "When
would the lives of your family, your friends and your fellow
citizens be safe? If the religious teacher who uttered that
thought ever meant what counsel seems to think, then it
was wrong and illogical when it was said, and it has been
wrong ever since. But I do not believe it was ever the
idea of any pious thinking person, that any such doctrine
should prevail in the world. It is contrary to the funda-
mentals of the land in which we live. It is contrary to
the laws we are sworn to enforce ; it is antagonistic to all
the ideals which have guided humanity since the dawn of
civilization.

Now, gentlemen of the jury, I am going to point out to
you the facts showing the intent and the deliberation of this
defendant in committing this murder. The motive has been
sufficiently alluded to, and I think you will hear no more
about this unwholesome and vulgar affair, between these
two folks, except as necessary in connection with my argu-
ment of the insanity issue.

In order to constitute murder in the first degree, there
must be some proof that the murder was by a premeditated
design to effect the death of the person killed.

Premeditated design does not mean what the argument
of counsel might imply, though one of them, at least, stated
the rule of law with a reasonable degree of accuracy. Some
of the argument that was made, however, does not fit that
rule of law. In order to constitute murder in the first de-
gree, the person who commits the murder does not have
to go down on the corner of the street and wait for the
victim to come along. That would be murder in the first
degree, of course, because of the deliberation. But there
may be deliberation without any such waiting. A person
does not have to spend weeks or days planning in advance,
to commit murder with deliberation. Not at all. The
question is whether there is deliberation for even an in-

456 XIV. AMERICAN STATE TRIALS.

stant, whereby the person who commits the crime has
formed the intent to do the act. A person who takes the
life of another with a gun is presumed to have intended
the result, and to be guilty of murder in the first degree;
and if a reasonable doubt is to be created, as to its being
that grade of offense, it must be created by the defendant,
or by some other evidence in the case sufficient to raise
that reasonable doubt.

Now, remember, the intent may be a sudden intent.
Merely to be angry does not excuse or lessen in any way
the grade of offense, for perhaps a large majority of the
acts of murder in the first degree are perpetrated in anger.
Merely to be angry is not the "heat of passion" that the
law takes cognizance of to lessen the grade of offense. If
one were angry, but had the evil intent for an instant of
time, even though it were a sudden intent, and he killed,
i. e., shot the person in front of him, he is guilty of murder
in the first degree. I ask you to follow the Judge of this
Court as he instructs you, and you wall readily see that the
premeditated design is not one that has to be framed a
long time in advance, but that it may be a sudden one. All
that is required is that the intent be formed before the act.
Then you have murder in the first degree.

The first element of murder in the second degree is that
it is perpetrated by any act immediately dangerous to other
persons. As to that element, this is such a case. The
second element is that the act must evince a depraved
mind, regardless of human life. That may exist in this case.
But the third element is that the act is "without premed-
itated design to effect death." That is the important thing
which distinguishes it from murder in the first degree. If
the intent to do the thing is present, it is murder in the first
degree. If the act is the result of a depraved mind, per-
petrated by an act imminently dangerous to others, and the
intent is absent, then it becomes murder in the second de-
gree. The crime involved in this case can scarcely be less
than murder in the second degree, as I shall now point out.

GRACE A. LUSK. 457

Now, manslaughter in the third degree, which is going
to be submitted, requires that the killing be in a heat of
passion. I have told you that does not in any way mean
just mere anger, because many cases of murder in the first
degree are perpetrated in anger. "Heat of passion" means
a state of mind incompatible with the formation of an
intent. It means a case where the intent is not formed,
not even for an instant, not even for a second, but where
the person is so wholly carried away by anger as to be
incapable of forming any intent at all ; where he is in such
state of mind that it is incompatible with his forming an
intent.

Just to illustrate : If I had gone out to one of your
homes in the country here, and you and I, for some reason
or other, had begun to quarrel, and I walked over to your
woodpile, got your axe, and came back and killed you with
it, the fact that I had walked over there and got that axe,
notwithstanding I was angry, and killed you because I
was angry, shows that I had deliberated, and had formed
an intent ; and I was, therefore, guilty of murder in the
first degree. But, if on the other hand, we had been out
there in your yard and there wTas an axe lying there, and
for an innocent purpose I had picked the axe up and had
it over my shoulder, and you then called me some name,
whereupon I flew into a rage, and was in such a rage, such
a heat of passion, that my mind was in a state where it
was incompatible with the formation of an intent, and I
struck and killed you, that would constitute manslaughter
in the third degree.

The propositions of fact I now want to state are very
important. I want to state them fairly, and in order to do
so I have made careful notes of them, so that in the enthu-
siasm of the moment, I will not be carried away or forget
that I am trying a murder case in which it is my duty to
protect this defendant as much as it is to represent the
State. The first proposition of fact upon which we contend
the defendant is guilty of forming the intent to murder is

458 XIV. AMERICAN STATE TRIALS.

this: The first shot that was fired into the body of Mrs.
Roberts was fired when Mrs. Roberts was in the dining
room. We say that because the facts demonstrate it be-
yond doubt. There was a blood spot in there. The de-
fendant admits remembering' that Mrs. Roberts was in
about the center of the dining room and had just stepped
from the telephone. So we have the blood marks, and we
have the defendant's statement. We have the further cir-
cumstance that she had just been at the phone, and, fourth,
we have her spectacles which were picked up very near that
same place.

Here is the parlor, where the body was found, and here
is the mark near the table where Chief McKay said he
found the glasses. Here is the telephone. Here is the
blood mark. So we have the glasses, the blood mark and
the defendant's statement as to where Mrs. Roberts was
just before the first shot. Therefore I think we can take
it as a settled fact in this case that Mrs. Roberts received
the first shot in the dining room. This shot was not imme-
diately fatal, because if it had been she could never have
left that room. That first shot caused a wound, after which
she could readily walk a distance of twenty-four feet. Now,
the second shot was in the parlor, because the body was
found in the further corner of the parlor, with a large pool
of blood near it. It was a shot through the aorta. The
aorta was punctured in two places, so as to completely
destroy the blood pressure and cut off the supply of blood
to the brain. The victim of such a wound would fall in
her tracks. Furthermore, we have the fact that there was
a trail of blood, illustrated by the marks which you see
upon that diagram, which indicate that the woman did
travel twenty-four feet before she fell down upon her back
and died. That shows, gentlemen of the jury, that this
defendant, in spite of her protestations that she does not
remember, followed her retreating victim a distance of
twenty-four feet between the two shots, not being near
enough at either shot to cause any powder burns on the

GRACE A. LUSK. 459

clothing. The last was not a close shot, but one preceded
by the deliberate aim of an expert marksman, who, stand-
ing there with that automatic pistol, saw when she shot
the first time that her intended victim was still able to walk,
and followed that victim with the gun because she was
obsessed with the idea of finishing her, and then, after her
victim retreated twenty-four feet, fired that last shot into
the most vital part of the human body.

This last fact also has important bearing on the insanity
issue they have introduced into the case. It shows a mind
that is working with reason. She shoots. She sees she does
not get her victim. She follows her. Why does she shoot
the second time? Because her mind reasons that she has
not finished her victim. She shoots the second time and
the victim falls on her back. The shot is plainly fatal.
"Why does she quit firing? Why doesn't she shoot again?
Because the mind reasons! Then she thinks it is time for
her to finish the job she started out to do, so she went up-
stairs to take her own life so as to cheat the law; then she
would not have to go through an ordeal such as this trial is.
The defendant has sworn on this witness stand that she
did so reason.

Talk about a mind not tracking that can do that!

Now, there is another proposition on which we stand.
I say to you, gentlemen of the jury, that all this talk about
her forgetting what happened in the short space of time of
from two to five minutes is a plain proposition of con-
venience. You were entitled to have from her the story of
those minutes if she expected to rely upon the defense of
heat of passion. Gentlemen of the jury, she is the only
living soul that knows just what happened there, because
the lips of the victim have been sealed and her soul has
taken flight, and she, poor woman, is not here to tell that
story. The defendant says that she went upstairs and got
the doctor's letters to show Mrs. Roberts, and then and
there saw the gun and picked it out of the box and took it
down, intending to commit suicide ; and that it was then,

460 XIV. AMERICAN STATE TRIALS.

after names were called, that she shot Mrs. Roberts. But,
gentlemen of the jury, this claim that she makes about
going up to get these letters is a ridiculous one, unsup-
ported by either the evidence or common sense, and abso-
lutely disputed, and overwhelmingly so, by the physical
facts. Why, gentlemen of the jury, the district attorney
of this county, who was sworn to do his duty, found these
Roberts letters in these two envelopes in the bottom of a
drawer of defendant's desk upstairs without blood stains
on them, covered up by miscellaneous papers, keys and
trinkets — just such things as would be thrown into such a
drawer. They had never been downstairs. They had re-
mained upstairs in the place where they had been kept by
this defendant. She didn't go upstairs to get these letters,
because if she had, she would have brought them down;
and the physical facts show she never did bring them
down. She went upstairs after the calling of these names
to get that gun, and she took it out of the box. She knew
it was loaded, and she took it downstairs concealed in her
pocket; because Mrs. Roberts had called her names. This
shows the intent and the design which was formed to com-
mit this murder. It shows murder in the first degree,
because the intent to kill Mrs. Roberts was formed before
she ever went upstairs at all. But the defense argues that
she went up there for the letters, and then decided to com-
mit suicide. She was not that fast about suicide. She
hesitated to take her own life even after she had shot Mrs.
Roberts. She swore it was hard for her to take her own
life, and because it was so hard, she waited more than an
hour between shots. Why, what would be the sense, gen-
tlemen of the jury, in her going up and getting those letters
and bringing them down and showing them to Mrs. Rob-
erts, and then killing herself? And yet every act of her's
was performed with reason and deliberation.

Now, there is another proposition in this case that
tends to show the design and intent to murder. It is sup-
ported by evidence, though I do not think that it is as strong

GRACE A. LUSK. 46

a proposition as either of the other two already considered.
The third proposition is that there was for a long time a
premeditated design to get rid of Mrs. Roberts. That ap-
pears to have been formed as early as March 9th, as shown
by that letter. The plan was to get rid of Mrs. Roberts in
some way, not necessarily by killing. The defendant says in
that letter, which she wrote on or about March 9th: " While
you were sick last Avinter he was with me every night. He
made no secret of the fact that if you had been called to
angel land it would be a happy solution of the difficulty.
In the eternal triangle the only solution of the problem is
the elimination of one character. The two who should re-
main are those whose affection is mutual."

Eliminate whom? She says on the witness stand, her-
self. I ask you, gentlemen of the jury, much as you may
regret the necessity of reading this letter, to look it over,
and see if you can find anything in it which can possibly
justify the claim that at the time she wrote this, she in-
tended to commit suicide? I challenge anyone to point
to anything in that letter which indicates suicide. On the
other hand, it indicates the design and purpose to eliminate
Mrs. Roberts in some manner, so that defendant might have
what she calls in this letter, "the throne" of Mrs. Roberts.

Now, I am not saying, gentlemen of the jury, that it
necessarily follows that when she said the removal of one
corner of that triangle was necessary, that she meant mur-
der; but it does show a design, perhaps not then fully
planned as to the method of execution, to remove Mrs.
Roberts from that "triangle" in some way. It may be
that the actual method of accomplishing it did not come
to her until the opportunity came on that fatal day when
these women were alone together. It may be that it was
then that she quite hastily fell upon the method by which
she would remove one corner of the triangle, and leave the
two, as she claimed, "whose affection is mutual."

Now, with respect to the argument that the crime com-
mitted is of no higher grade than manslaughter. I answer

462 XIV. AMERICAN STATE TRIALS.

that if there was an intent formed to kill, even though it
was a sudden intent, the crime is murder in the first de-
gree. If that intent did not exist, the crime was the result
of a depraved mind, and the act was done in a way that
was imminently dangerous to others, and that is murder
in the second degree. Gentlemen of the jury, I say to you,
in the light of the testimony here, that there is no evidence
of any such heat of passion as reduces the crime to man-
slaughter, because the evidence does establish the intent
to do this. Besides, it is presumed from the act itself, in
the absence of explanation — which the defendant has not
given because she has conveniently failed to remember.
You were entitled to an explanation from her, and in its
absence, there is no evidence whatsoever in this case, of
heat of passion. In fact, she denies she was angry at the
time of this awful act. I think, however, that she
was angry, but I do not think that that anger was any such
anger as constitutes "heat of passion" in the law, because
the evidence in this case shows that between the time the
anger possessed her and the final act of the tragedy, she
formed the evil intent, and committed the final act pursuant
thereto.

Now, gentlemen of the jury, we have not only the physical
facts that establish murder in the first degree, and an admis-
sion on the stand that eliminates manslaughter, but we have
the fact that she confessed, over and over again, to facts
which prove some higher degree of crime.

Let us see : First she wrote this bloody note, from which
I read: "This is the work of the man who said he loved
me. God forgive me." Forgive her for what? She knew,
when she wrote that, what she had done. Then she wrote :
"Pay Bianca for the house that I have spoiled." She knew
she had shot up and despoiled the house when she wrote
that. This brain, that they claim was so befogged that it
was completely off the track, was reasoning then, in spite
of the fact that she had shot Mrs. Roberts downstairs, and
had shot a bullet through her own body upstairs.

GRACE A. LUSK. 463

Then we have the confessions that were made to Dr.
Davies. To him she told in detail the whole story of the
tragedy, and within a few minutes after the crime was com-
mitted. Why, gentlemen of the jury, if some crime should
be committed in your neighborhood, and you went over to
the house where it was committed and found a person under
circumstances similar to those under which she was found,
and talked with such a person the way Dr. Davies did with
her, you would know, wouldn't you, what the truth was?
That was the best time and place to find out what the truth
was. Dr. Davies was impartial and kind to her just as you
would be under similar circumstances, and he got the truth
first hand. She asked him to write at her dictation, and he
wrote : "Dr. Eoberts told me again and again that he loved
and that he cared for no one but me. He said that his wife ' '
— His wife! She had Mrs. Eoberts in mind, didn't she?
"He said that his wife and he had never cared for one an-
other, and that he cared for me more than anyone else in the
world, and he promised me that he would tell her before the
15th of June ; and he swore on the Bible. ' ' She remembered
then, didn't she, of standing that fellow up against the wall
of the room at the Hotel "Wisconsin, at the point of a gun,
and exacting that promise from him while he had his left
hand on a Gideon Bible, and his right hand raised heaven-
ward? Wasn't her memory pretty good then — this woman
who was so conveniently unconscious for a few minutes
while her gun worked automatically? I read on: "I told
him if he did not care for me, we would drop it all. When
he came back last night .... I told him that he must
tell her, and the only dishonorable thing we were doing was
deceiving her." That is just what she wrote in that letter
on the 9th of March. What a memory! Mind tracking
just the same every day. "I went over to see her last
night." Now, how about memory there? "He brought
me back through the park. I asked him again if he cared
for me, and he said he did. He promised to go home and
tell her. I called him up just before Mrs. Roberts came."

464 XIV. AMERICAN STATE TRIALS.

Just before Mrs. Roberts came! She remembered, didn't
she, that Mrs. Roberts did come? She knew Mrs. Roberts
had been there, and she knew, when she dictated this, that
she had shot her. "He said over the phone that he had
told her he cared for me. He told her I had been chasing
him to death, and I was the damndest fool that ever lived."
Evidently she remembers the details of the conversation
between Mrs. Roberts and herself. "She called me every
name" — and then she goes on in all this detail, showing
that her mind was working perfectly. "I am leaving money
enough. I want B. Mills to be paid for all the damage done
to this place. Everything must be paid for very well.
Father must see to that. Every debt is listed in my
desk' ' — and it was ; and then she gives the address of her
dearest friend, Winifred Frey, in California. Besides this,
she told over and over and over again her reasons for having
committed the crime. That was before she had concluded,
as she did at some time afterwards, to tell the story of un-
consciousness as a part of her sham defense of insanity.

The most significant thing that happened there was this :
When she asked about Mrs. Roberts and was told that
Mrs. Roberts was dead, she said: "What will they do to
me?" And the doctor said : "Well, they will probably put
you in jail." But she says: "No, they won't." On this
witness stand she said that she then decided to take her
life in order to avoid the ordeal of this trial. There is the
nub of it, gentlemen of the jury. She knew that she had
killed Mrs. Roberts. She decided to take her life to avoid
this ordeal, and that is why she told Dr. Davies that they
would not put her in jail. She knew what she was talking
about then ; and I cannot blame her for so deciding.

Then at the head of the stairs, after she had shot herself
fhe second time, Dr. Davies said to her: "Why did you
do this awful thing?" And she said: "She called me such
awful names." This clearly meant that she had shot Mrs.
Roberts because "she (Mrs. Roberts) called me such awful
names." That was why the defendant did that awful
thing.

GRACE A. LUSK. 465

There is a little bit of nonsense in the argument that
the " awful thing" she referred to was her suicide. Would
she shoot herself because Mrs. Roberts called her names?
The awful thing she referred to was the shooting of Mrs.
Roberts, because she knew that she had shot her. Then
she told Mr. McKay the same story she had told Dr.
Davies. Part of the conversation was in the presence of
both men. She was then taken to the hospital, and con-
fessed again that the reason she committed this crime was
because Mrs. Roberts had called her such awful names.
This confession was to the superintendent, Miss Collins.

On the 26th of June, four days after this tragedy, Mr.
Steiner, the representative of the United States Depart-
ment of Justice, went to the hospital with the district
attorney and the sheriff of this county, and the following
conversation occurred. Counsel says questions and an-
swers were not given, but let me read to you this testimony
which shows that the conversation was by question and
answer. Mr. Steiner asked: "Did you realize at the time
what you were doing?" Just think of that, gentlemen of
the jury: "Did you realize at the time what you were
doing?" Now, remember the time, four days after the
tragedy, before she had developed this scheme of uncon-
sciousness— before this notion of insanity had crept into
this case. That was a time when she was still as con-
scious of what happened as she was when she was talking
to Dr. Davies. Besides this, she had had time for reflection
and study, but had not as yet planned this fancy defense.
He said: "Did you realize at the time what you were
doing?" And she answered (and I have the exact language
of the witness here) : "She said she did." "She said she
was in a perfectly sound state of mind at the time she com-
mitted the tragedy; that the reason for doing so was be-
cause Mrs. Roberts used obscene language in reference
to her."

Was she unconscious when this crime was committed,
if four days afterwards, before this sham defense of insan-

466 XIV- AMERICAN STATE TRIALS.

ity was conceived, she told this story to the representative
of the United States Department of Justice? Then she
was asked by the district attorney of this county, who was
there in his official duty, as he ought to have been, ''How
did you come to do it?" Well, it was a simple matter then.
It has always been, a simple matter. It was never any-
thing but an A. B. C. proposition. "How did you come
to do it?" And she answered: "Because she called me
such awful names." That is just what she said a dozen
times on the day of the tragedy. As yet, she hadn't
changed her mind. Her memory was working perfectly
up to that time. Then she said further: "What I can't
understand is how I did it so cool and deliberate." What
did she mean? She meant that she went upstairs to get
that gun in order to do it. She meant that she followed
her victim for that second shot.

Now, she doesn't tell that story any more. She goes
on this witness stand, and she not only says that she does
not remember what happened at the time of the tragedy,
but she also says that she does not remember whether she
made these confessions. It seems to me as if whenever
it gets uncomfortable for her to remember, she forgets
for convenience.

Notwithstanding her trance, her memory is too good
about some things. She remembers some things that never
happened there in that house. While I do not dispute the
fact to be, that Mrs. Roberts gave her a good trimming
down there that day, it does not strike me that this woman,
who has conveniently forgotten the most important facts
that you should have here in order to tell the grade of this
crime, is telling the thing just as it happened, when she
puts some of those vulgar statements into the conversation
of Mrs. Roberts. It sounds as if it were made out of the
same cloth that the story of forgetfulness was made from.

I come now, gentlemen of the jury, to especially consider
the special plea of insanity.

Counsel for the defense have been very strategic in their

GRACE A. LUSK. 467

argument of that question. They have tried to confuse the
terms sanity and normality. Now, look out for that, and
watch the charge of the Court. Insanity under the law of
Wisconsin is something more than abnormality. The test,
of insanity here is the capacity to distinguish between right
and wrong. If abnormality were the test, a great many
of us who are thoroughly responsible for our acts, and who>
know the difference between right and wrong, could be ex-
cused from punishment for crime, because in some particu-
lar peculiarity of mind, we were made different from some-
body else, or different from the great mass of mankind.
We might be excused from responsibility for having pas-
sions; we might be exonerated from crime for having a
mind in which anger is easily aroused; a bad disposition,,
or a revengeful temperament might let us go scot free for
anything, and yet all of those characteristics, and thousands
of others, in greater or less degree, go to make up all of
our dispositions.

The defendant is, no doubt, possessed of a quick temper
and despotic disposition. That is a sad circumstance, for
which she probably is not fully to blame. There is a doc-
trine of one of the great churches that we are only held
to the grace which God gave us in the beginning. That
may help us when we come to face our Maker. But it
is not the law which governs us in civil communities. We
have a duty here, long before we have to face our Maker,
to protect society from crime, and to protect human life
as the most sacred thing in the world. So our law provides
that responsibility is to be tested here by the capacity to
distinguish between right and wrong. Therefore, don't
be confused by the circumstance that the defendant in this
case may, through her own fault, or partially through her
own fault, and partly by heredity, be a somewhat different
person temperamentally than you or some others may be.
To those who are temperamentally like her, and who are
easy to anger, if that be the case with her, we must, in the
performance of our duty, hold out an example so that all

468 XIV. AMERICAN STATE TRIALS.

such will be more likely to control their temper, to the
end that society may be protected, and the dignity of the
law upheld.

The defense contends that this woman is insane because
she planned to commit suicide. I don't know whether her
plans for suicide were the same kind of a bluff that she
asserts she worked at her meeting with Dr. Roberts at the
Hotel "Wisconsin; but I do know this, and you know it:
those records that have been offered here showing the de-
tails of that plan of suicide show the acts of a reasoning
mind — a mind not controlled by violence — a mind which
had decided, for a reason, to take her own life, if she had
so decided. You will recall that she says she made those
plans about the 24th of May. The inventory bears the date
of the 24th of May, in fact. The pen-written part was
evidently put on afterwards to indicate her wish as to the
division of her belongings. The will was made June 1st,
though it was in contemplation before. She made special
effort to complete it on the morning of June 1st. "Why
June 1st? Because, gentlemen of the jury, it was at five
o'clock of the afternoon of that day that she was to meet
Dr. Roberts at the Hotel Wisconsin; and if she was antici-
pating suicide at all, and if it was not a mere bluff with
reference to Roberts, as she says, then, gentlemen of the
jury, it was the design in her heart when she arranged that
meeting to deliberately put him in the corner of that room
under the pistol, and if he did not come across with the
promise that she was insisting he should make in order
to break up his home and make a home for her, then he
was to be shot down, and she would follow with her own
suicide.

If she planned that, she did it deliberately; and if she
did it, she did it for a reason. If she did it, she didn't have
delusions. She does not claim any trance-like state then.
She remembers all the details. She remembers she pulled
the gun out of the drawer, where she had purposely put
it in advance, because Dr. Roberts said that it was impos-

GRACE A. LU8K. 469

sible for him to make the promise which she demanded.
That is the reason why she went and got the gun out of
the drawer. That is why she put it on him, put him under
the gun, and swore him to the promise so exacted. There
might have been a different case than this. Two corners
of the triangle might have been eliminated and the noble,
good-hearted and exalted woman would have been left for
her service in the world which God Almighty ordained she
should give to society. But she did not shoot Dr. Roberts
or herself. Why? Because she got what she was after.
She got the promise. When she got the promise, she
wanted to have that promise made good. She believed the
execution of that promise, the giving of the information
such as was contained in that letter of March 9th, written
on her own typewriter, would separate those two people,
and give her a better chance for the ''throne" of Mrs.
Eoberts.

Now, that was the act of a reasoning mind. Wouldn't
that separate Mr. and Mrs. Roberts? Where is the good,
noble-hearted woman, that they have justly described Mrs.
Roberts to be, that would not move out of her home and
discard the husband who, as defendant says in that letter,

had "made himself a hypocrite, committed , and

done other things." So the defendant, after she had so
exacted this promise at the point of the gun, at once com-
menced to seek condonation of her rather extraordinary
methods of love-making, and embraced and gave the Doctor
a legacy of kisses, all of which he peaceably acquiesced in
because he was a coward, and for that I do not blame him.
A kiss is rather less dangerous than a gun, sometimes.
That whole affair was a scheme. It was all reasoned out
and was the product of a sane mind. The goal in mind
was just the thing that would happen in the ordinary
family. It might be, of course, that Roberts would not
marry her after the home was broken up, but still the
chance of his doing so was a good deal improved over what

470 XIV. AMERICAN SFATE TRIALS.

it was while Mrs. Roberts stayed there ; for he did not have
any chance for divorce. The defendant says he told her
that in the eyes of the law, Mrs. Roberts was a model wife.

Talk about reason ! Talk about an insane mind so reason-
ing ! Talk about that being the product of a mind that was
not tracking perfectly.

They claim, further, that this attempt at suicide on the
day of the tragedy evidences insanity. I say no, because
she has told you herself the reason why she wanted to die.
Sitting right here on the witness stand, she said she wanted
to die because she wanted to avoid the ordeal of this trial,
or a trial like it. That is the reasoning of a sane mind.
That is the way many minds would reason.

Mr. Clancy truly said, in his argument, that she was
facing horrors worse than death ; and if Mr. Clancy is right
in that statement and Mr. Clancy is of sane mind — and he
is — then there was all the reason why she should reason in
the same way.

Furthermore, it demonstrates that she was sane, for she
admitted on this witness stand that she hesitated about
shooting the second shot into her own body because it was
a hard thing for her to take her own life.

Furthermore, she says she changed her mind about
suicide because of the request of her father. This poor old
father had lived to a ripe old age ; had practiced his profes-
sion successfully; had brought up his family well; had
probably gone through many troubles. He loved his
daughter as I know I love mine. He cherished the hopeful
future. He looked with complacency and happiness upon
the past. The sympathy of my heart goes out as deeply
to him as it ever has to a living being. He was brought
unfortunately to this awful situation. I know it took the
heart right out of his life, and stranded his very soul in'
the gulf of despair. But in his love as a dear old father
for the girl that will always be a little girl to him, he argued
and pleaded with her to face the trial rather than her Maker.
He may have repeated some of the prayers that he taught

GRACE A. LUSK. 471

her when he held her, as a little girl, upon his knee. She
listened to his prayers and arguments, and she became con-
vinced. Do insane minds listen to arguments? Are insane
minds convinced by reason? No! They run contrary to
reason. So you see, that fact also breaks down their claim
of insanity.

Then they argue that she was insane because of sleep-
lessness; and yet her own statement is that she slept as
much as four or five hours in a night.

Why, gentlemen of the jury, the greatest military leader
that the world has ever known, Napoleon, slept only five
hours a night; and while he was doing it, he changed the
whole map of the civilized world ; and but for a few errors
of judgment, a few mistakes, a few departures from his
original plans, due wholly to ambition, he would have writ-
ten into the fundamental law of the civilized world, prin-
ciples which would have saved the world from the curse of
Prussian Militarism.

The doctors for the defense have given their opinion
based on a perverted hypothetical question, that defendant
is a paranoiac; that she has original paranoia, which is a
continuing, progressing and incurable disease. That means
that if she had paranoia on the 21st of June, 1917, or at
any time in her life, she has it now worse than she had it
then, because if it is a continuing, progressing, incurable
disease, that follows as a matter of course.

Well, now, gentlemen of the jury, the Court will in-
struct you as to the weight of expert evidence, and I want
you to listen to those instructions, I want you to stick a pin
in them — not in the experts, but in that part of the charge,
so that you will retain it clearly in mind. You will find
that under the law, you are the judges of this woman's
sanity or insanity. They claim she is now insane
and worse now than she was then. You have seen her here
in the trial. She has gone through an ordeal, the like of
which it is seldom the unhappy lot of an individual to go
through. She has been compelled to face these letters, and

472 XIV. AMERICAN STATE TRIALS.

I am sorry that she ever wrote them. I should a great
deal rather that the State never had them; I am sorry it
was ever my duty in the prosecution of any case to have
to offer such foul things in evidence; but she has faced
that ordeal like a major — if that term may be applied to a
woman — and I don't mean to apply it in any disrespect.
Why, gentlemen of the jury, in my twenty-two years of
law practice, a good portion of which has been consumed
in the trial of lawsuits, I never saw a man or woman take
the witness stand who was superior intellectually, who
had stronger brain power, or reasoning power; who had
developed a higher grade of strategy in the use of the
English language, using the right word in the right place
always, than this defendant. She is a profound scholar,
a student of literature, a woman developed in brain power
as few women are, and rightfully entitled to be classified
intellectually and mentally as a charming woman. She
insane now? Well, gentlemen of the jury, if she is as
perfectly balanced now as she appears after going through
this ordeal, after going through this battle for her life here
in this court room, after facing these things which she
supposed, and had a right to suppose, had it not been for
this tragedy, were the secrets of her soul, then they may
pile their opinions as high as the canopy of heaven, and
they cannot convince men of reason that she did not then
have the brain power to distinguish between right and
wrong. Remember that you are the judges of that, and I
cannot doubt the result, for I know you realize the truth,
and have the courage to declare it.

Remember they admit that if she had paranoia then,
she has it now; and if she hasn't it now, she never had it,
because if she ever did have it, she would still have it.

These changes in the brain that counsel has told about
are not flitting things that come this moment and drift
away the next, especially if caused by paranoia; and when
we find a case where these alleged changes in the brain
last only two or three minutes, and then the person gets

GRACE A. LUSK. 473

completely over them, and remains normal, and can do
what this woman has done here on this trial, then it is a
pretty silly, as well as a suspicious contention to make in
the trial of a lawsuit that she does not remember what
happened, and that she was insane at the time.

Now, I want to call to your minds, gentlemen of the
jury, the fact that she acted with reason all the way through
her unwholesome course. First, she wanted Dr. Roberts.
Now, people might differ as to whether she ought to want
him; but she did want him, and she is not the first sane
woman in the world who wanted some other woman's man,
and many of them have succeeded. Her acts were prompted
by reason here. She submitted to his kisses, according
to her own frank statement, at the very first, with the silly
protest that he was married and ought not to do it, and
then proceeded to embrace and kiss him. She evidently
thought delay was dangerous. Thereafter she desired to
get Mrs. Roberts' home for herself, and she acted with
reason to accomplish that purpose. She decided, with rea-
son, to plan this County Line meeting to that end. She
did not have any trance at the County Line. She remem-
bers everything that happened there. She tried out her
scheme to have Dr. Roberts promise to tell his wife every-
thing. She was angry when he refused. Counsel says that
was an attack of insanity. Well, if it was an attack of
insanity, why didn't it act just the way they claim it did
when she killed Mrs. Roberts? Why should these attacks
be different one time than another? Why should she re-
member all that happened on one occasion, and forget al-
most everything that happened on the other? The same
is true of the Wisconsin Hotel meeting. She remembers
all of that. And she says here on the witness stand that
all she intended to do was to bluff Dr. Roberts; that she
knew, when she pointed the gun at him, that he would
make the promise ; and she said she would not have shot
him if he had not done so. Reason? Was she not acting
with reason? True, it was a foolish thing to do, but she

474 XIV. AMERICAN STATE TRIALS.

was desperate about it, and she used desperate means to
accomplish her end.

Then, gentlemen of the jury, take the night of June 20th.
She still desired to enforce that promise, and her plans to
that end were carefully and skilfully laid. On June 21st
she wrote that letter to her friend, Miss Wymans. Now,
I am not going to bother you, or take your time to read
that, because you have heard it once. If there is any
question about it, you can read it in your jury room. But
I want to ask you, gentlemen of the jury, candidly, you
who are sworn here to do your duty just as I am sworn
to do my duty, if that letter is the product of an insane
mind? Not much! And that was written at 11:30 o'clock
in the forenoon of the day of the tragedy. Then she had
dinner and then went to visit two different dressmaking
establishments. She remembers all about these things.
True, she seemed preoccupied. Well, no wonder! If she
was contemplating the meeting with Mrs. Roberts at
which she intended to disclose the facts set forth in that
letter that she wrote on the typewriter, she would feel
a little bit preoccupied, and it would be an evidence of
something being the matter with her mind if she did not
feel preoccupied. She knew that she was going to meet
the woman whose throne she intended to take, whose
crown she intended to assume for herself, and she was pre-
occupied, because her mind was tracking perfectly. She
was thinking about the meeting which she was going to
have with Mrs. Eoberts, and wondering what the conse-
quences were going to be, how it was going to come out,
whether Mrs. Roberts was going to surrender her throne
in a meek and mild manner, or whether she was going to
make some contest on the question as to whether she was
entitled to continue to live in the home she had lived in
for thirty years.

Now, she talked about her western vacation trip and
about insuring her baggage that day. That was reason-
able. She ate dinner that day — perhaps not as much as

GRACE A. LUSK. 475

usual. Her mind was preoccupied. She went to post the
letters. She remembers the reason why she did not post
them. She wanted to be sure Mrs. Roberts would get that
letter that day, and so she did not want to post it where
it would not be picked up until 4 :30 o 'clock. She read that
fact on the mail box and governed herself accordingly.

Then she met Mrs. Roberts. Mrs. Roberts scored her.
She went upstairs. She got the gun. She remembers all
that. She shot the last shot at the most vital part of the
human body, which shows that she acted with reason.
When she shot herself the first time she pointed the gun
where she had supposed the apex of her heart was. The
only reason she didn 't pierce the heart was because her sup-
position was wrong as to where the heart was, but she shot
at the very place that she had believed all her life her heart
was located.

Was that the act of an insane person? She acted with
reason, didn't she! She was counseled by reason.

She shot the second shot at Mrs. Roberts, because she
did not get her with the first one; and she quit shooting
after she had shot her the second time, because she saw
she had killed her. Is not that the act of a reasoning mind1?

Why, Mr. Clancy, in his earnest, brilliant argument,
declared and admitted unwittingly, perhaps, that the de-
fendant is "large mentally." How truthful! How that
does accord with the fact. Where, gentlemen of the jury,
has anyone of you ever come in contact with a woman who
showed the mental ability, the education, the training, or
who has the command of English that she has? A woman
recognized wherever she is known for her ability mentally.
Why should not her counsel say that she is "large
mentally"?

Can you conceive that a person who is not large mentally
could go through this ordeal the way she has, not even
exhibiting impatience or anger? You might expect in the
light of the evidence that this woman might show some
impatience or anger, but she went through this long ex-

476 XIV. AMERICAN STATE TRIALS.

animation by her counsel and a fairly thorough cross-
examination by me; and yet she was and is patient to the
last degree, cautious to the utmost all the way, evading
where there is danger, forgetting where it is helpful to her
case, remembering things with accuracy when they serve
the purpose of her defense, exhibiting no explosion of tem-
per, all the way through perfectly courteous — more than my
equal, I confess. Why talk about a person like that being
insane? Why, a verdict of insanity in this case might just
as well sweep all of us in. She is as sane as any of us !

Now, in paranoia, there are delusions of persecution,
and the supposed persecutor is often a victim of homicidal
inclinations of the paranoiac. But this woman whom they
say has paranoia does not seem to have had any delusions of
persecution by Mrs. Roberts. She had no delusions what-
ever. She never had even a thought that Mrs. Roberts
was persecuting her. She even addressed Mrs. Roberts
in these three letters here, "My dear Mrs. Roberts." Do
you think that if she had been a paranoiac and therefore
had delusions of persecution, by Mrs. Roberts, that she
would have addressed her over and over again, "My dear
Mrs. Roberts?" Nowhere in the correspondence can you
find that the defendant expressed the thought that Mrs.
Roberts was persecuting her. The ideas that she expressed
do not contain a thought of persecution. On the other
hand, she wanted the place that Mrs. Roberts had, and she
followed reasoning and designing ways to get it. Whether
it was the wisest way to play her game might be a question,
but it was a hard game. All of us make mistakes in judg-
ment, especially when in difficult situations. Sometimes
you gentlemen, who are farmers, cut your hay on the
wrong day, and the rain comes down on it before it cures
and you can get it in. You have made a mistake ; you have
not watched the weather signs. You have not heeded the
signs which controlled your fathers. But it does not fol-
low that you are insane.

A paranoiac also has delusions of grandeur. He thinks
he is the President of the United States, or that he is a

GRACE A. LUSK. All

wonderful healer who has been ordained by the Good Lord
to cure all the ills of the human race. Sometimes he thinks
he is a King. Another is commissioned to change the
whole order of things in the world, and to make the world
over into heaven. Those are ideas of grandeur; they all
have them in some form. Where has defendant shown any
delusions of grandeur? Answer me! You may say — "She
thinks she is a smart woman." Well, she is. That is not
a delusion. She knows she is, and she is right about it.
She has patiently gone through the years getting an edu-
cation, and I give her all due credit for that. She was in-
spired by proper ambitions, at least in that direction, and
she is entitled to credit for that. She is a smart woman.
There is no delusion about that. Counsel infers she has a
right to think so. I do not even think she unduly parades
it. Not at all. But if she did unduly parade it, she would
have plenty of company, for there are not a few who are
proud of themselves, and see to it that every one knows it.
There are a great many perfectly sane people who are
foolish enough to keep all they know on dress parade, and
sometimes things they do not know.

Furthermore, in this disease of paranoia, the evidence
is undisputed that there is no trance-like state such as she
claims she had. Trance-like states develop from epilepsy
or epileptic equivalents. But they do not claim she has
epilepsy, and they do not claim that she had an epileptic
equivalent. They claim she has paranoia, which is a pro-
gressing, continuing and incurable malady. We all know
she has no paranoia, because there is nothing at all the
matter with her.

Dr. Davies was right there, and if there is any man in
this world that knows whether or not she was insane at
that time, he is that man. He talked with her for an hour.
He said she was hysterical. Well, there are many women
who are hysterical, who are not insane. She talked along
with him rationally. He says there was no insanity of
any kind — that she was cool, though she was hysterical;
that she was rational ; that no trance-like state existed.

478 XIV. AMERICAN STATE TRIALS.

The defendant's counsel has argued that she was insane
when she wrote the bad letters to Dr. Roberts and Mrs.
Roberts, and sound of mind when she wrote good letters
to her old friends.

"Well, now, if we were to follow that argument, we would
find that all people who have a bad streak are insane, at least
a part of the time, but when they are parading among good
people and doing good things, they are sane. That is equiva-
lent to saying that bad folks are insane whenever they do
wrong. We know better.

Now, to refer to the hypothetical question used by the de-
fense. They assume in their hypothetical question this:
"This is the last Miss Lusk remembers, her memory being a
blank until after she had fired one shot through her body. "
Well, you put that into the question and assume that to be
the fact, and the answer does not amount to much because it
assumes a fact that is not established by the evidence in this
case, but that in fact is overwhelmed by the evidence. So
this case resolves itself into this question "Was the de-
fendant conscious at the time she committed this awful act ? ' '
If she was conscious of what she was doing, if there was no
trance-like state such as exists in epilepsy, or in an epileptic
equivalent, then she was and is responsible for her act. So, in
the light of all this expert evidence, the real question for you
to decide is simply whether she was conscious at the time,
and whether or not she is not just purposely forgetting so
that she won't have to tell you the horrible details directly
connected with that murder.

Now, I want to go over the events close to the murder to
test her story in the light of the other evidence. Bear in
mind, gentlemen of the jury, that the undisputed evidence
in this case fixes it as a fact, that there were two shots from
upstairs that were heard within a second to three seconds
of each other, and five or six minutes after Mrs. Roberts
was shot. Those two shots were the two that Grace Lusk
fired upstairs an hour or more prior to the time that she
shot the second shot through her body. One of those shots

GRACE A. LUSK. 479

was a shot out of the window to test the revolver, and the
other shot was the first one she put through her own body.
They were within three seconds of each other, because a
man walked only fifteen or twenty feet between these shots.
Now, bearing that in mind, remember this: Defendant says
Mrs. Roberts called her names. She remembers that. She
then went upstairs. She remembers that. There was no
trance then. She got the gun out of the box, put it into
her handbag, thought of the fact that she had on a dress
for the first time that season that had a pocket in it, and
then she took it out of the bag and put the gun into her
pocket. She remembers the whole of that. Was she sane
then? Was there any trance? Of course there was none.
Then she went downstairs, and according to her claim, Mrs.
Eoberts called her more names; but you are not bound by
this story, for she has not told you the whole that hap-
pened there. There are facts which you had a right to know
from her, because she was the only one who could tell them.
Then cames the first shot at Mrs. Roberts. That, she very
conveniently says, she does not remember. She is hiding
behind the time-worn phrase, "I don't remember," upon
which no witness was ever cornered, because you cannot
look into the secrets of the soul or the mind to find out
whether one remembers or not. When a witness says, "I
don't remember," you have to decide from the other facts
whether that is not just a hide-and-seek proposition, and
whether it is true, or not. Then follows the second shot,
which comes after the deliberation that gives the woman a
chance to retreat twenty-four feet. This shot is pumped
into a vital part of the body, and the woman falls in her
tracks. Defendant says she does not remember that. But
she does remember re-loading the gun upstairs. A strange
thing, isn't it? And she remembers she shot out of the
window, and she remembers why she so shot; it was in ac-
cordance with a custom of hers, upon re-loading the pistol,
to shoot one shot first to find out whether the cartridges
were clogging. She wanted to be sure that the gun would

480 XIV. AMERICAN STATE TRIALS.

not clog when she fired to remove herself from the world
and away from the ordeal of a trial.

So, as to the physical facts, she remembers the reloading
of the gun, and the shot out of the window, both of which
occurred before she shot herself, because that was why
she was reloading, and that was why she shot out of the
window. And then, conveniently, she forgets the next fact.
She forgets that she shot herself where she had always
supposed her heart was. But that fact shows that she was
reasoning. She shot the finger that time, for before the
second shot we find the hand bleeding. That means that
she was reasoning to the extent that she put her left hand
on her breast at the place she supposed her heart was and
shot the finger off with the first shot at herself. Reason-
ing? How can you get away from it? Then she writes
this blood-stained note that I have already read. She re-
members that. She remembers the blood in the room. And
then she has the conversations at the head of the stairs,
which she admits she remembers. She swore here that she
remembers the whole business from first to last with these
convenient exceptions. She admitted to several that she
shot Mrs. Roberts because Mrs. Roberts called her names.
These were the admissions to Davies, McKay, the sheriff, Mr.
Redford, the hospital nurse, Steiner, Tullar and the sheriff,
all evidencing the fact that she remembered all and every-
thing. Gentlemen, she could have told this story to you on
this witness stand the way she told it to the representative
of the United States and the district attorney of this county
at the hospital, if she would.

Now, gentlemen of the jury, I believe in truth. I hope
I do as much as any man on earth. I do not know whether
I do or not, but I think I do. I am going to frankly con-
fess that I do not blame this poor woman for saying that
she does not remember. The facts are that she does re-
member, but I do not blame her for saying otherwise. She
knows she has committed a heinous crime. I do not know
how she will be judged when she has to face her Maker; I

LEVI AND LAB AN KENNISTON. 48)

do not know how much the grace that God gave her may ex-
cuse her on the Judgment Day, but in the eyes of our law,
she has taken that which God gave to the world; she has:
killed a human being, and that has made another premature
mound out here in the cemetery of this beautiful city. She
did that act with intent, and she knows it, but I do not
blame her for saying she does not remember. For her sake,
I hope she can some day so live as to forget, and that her
crime can be forgiven by Him who is so kind in judgment.

Now, Senator Lockney saw the danger of this situation,
keen-minded man and good lawyer of broad training that
he is. He saw that this forgetfulness looked pretty shaky.
So he said she no doubt had a suspicion as to what had hap-
pened down there. Yes, I think she did have a suspicion,
but she cannot hide behind a mere suspicion when the facts
show that she knows.

The subject of memory is a very interesting subject in
the law. Spencer says: "It is impossible, while staring
at the sun to think of green. ' ' I suppose that would be true
even of those of us who take kindly to green. Just as we
cannot look at the sun and see green, so an interested per-
son cannot look at a situation and permit his mind to unfold
anything that is profoundly against his or her own interests.

This convenient forgetfulness that we find in all biased
witnesses, is proverbial. It has been known ever since the
trial of lawsuits commenced. We were, however, entitled
to have the whole truth here. I could be a better judge
of this situation if I had it, and you could be better judges
if you had it. If the events that happened there justify
manslaughter in the third degree, the defendant should have
told those facts, and should not have hidden behind for-
getfulness— forgetfulness that does not exist, and never did
exist, and which we know on the physical facts, and in the
light of the whole truth, did not exist.

Counsel has talked to you about reasonable doubt. Just
a word on that, though you will get it all from the Court.

First, on this proposition of murder in the first degree;

482 XIV. AMERICAN STATE TRIALS.

we know the intent existed, even though it may have been
a sudden intent. I therefore inquire:

First — Have you any doubt about it ?

Second — If any one of you has any doubt, is that doubt
founded on reason? Is it a doubt that would cause you to
pause and hesitate in the important affairs of your own life?
I say no. The defendant has not met that situation. We
have shown from the physical facts that the intent was
formed, that she followed twenty-four feet to deliver the
second shot, killed her victim by shooting her in a vital part
of the body; that she went upstairs to get the gun to do it
with, either of which facts establishes murder in the first
degree. Have you any doubt, founded upon reason, any of
you, but that she wanted Mrs. Eoberts' home? Have you
any doubt about her getting the gun for this purpose? Can
you see anything in the "fishy" contention that she went
upstairs to get Dr. Roberts' letters? Why, the letters were
found up there afterwards, and apparently had never been
touched. Are you going to take that kind of silly contention
to inject a reasonable doubt in this case, on the question of
intent? Have you any doubt upon the proposition, that
these letters were never taken by her from that desk drawer ?
If she did not get those letters from that drawer, then she
went up to get the gun with which to do this job, and the
intent is there. Have you any doubt about the fact that Mrs.
Eoberts was shot twice? Have you any doubt of the fact
that her death was at the hand of the defendant; that her
charming little gun, with its message of death, shot out twice
in the room where these women were, and removed one char-
acter in the "eternal triangle?" Have you any doubt that
she was conscious at the time? Have you any doubt upon
the proposition that she could distinguish between right' and
wrong at the time? Have you any doubt that she is sane
now? If she is sane now, she was sane then. That is what
her own doctors testified to in substance and effect.

If you have a reasonable doubt as to the existence of the
intent, have you any reasonable doubt that the crime was
perpetrated by an act imminently dangerous, and that the

GRACE A. LUSK. 483

said act evinced a depraved mind regardless of human life
so as to constitute the crime of murder in the second degree?

I have wanted to feel, gentlemen of the jury, that my duty
is the same as yours, though the things I have had to do in
the trial of this lawsuit are different than yours. I have
wanted to be in the same impartiality of mind that the
attorneys on both sides asked you to be in when you entered
upon this trial. I want to be of the same degree of sym-
pathy that you are for this woman; I do not blame men for
having sympathy for women defendants. But we cannot
decide cases of this kind on sympathy. If these cases were
to be decided on sympathy, every man or woman guilty of
the most heinous crime would be acquitted, because, gentle-
men of the jury, there is seldom a criminal case where there
is not some dear old father or mother who loves the unfortu-
nate boy or girl on trial. There was never a case when at-
torneys could not find reasons for, and response to, appeals
to the hearts of men ; but, gentlemen, our duty is clear. Our
mission under our sworn oaths — and I count myself as the
thirteenth member of the jury when I say that — is to just
step right out as courageously as these boys are marching
in this great Christian Crusade that our nation is now en-
gaged in, to redeem the world from autocracy — you step
right forth with the courage and the honor and the bravery
required to do the thing which real justice demands; which
the enforcement of the law demands, and which the protec-
tion of society demands.

The state of "Wisconsin, in all its dignity, fair to all its
citizenship, which gives equal rights to all and special privi-
leges to none, and represents the highest principles of demo-
cratic government, asks at your hands, because it is right
and because it is just, and because it is in accordance with the
facts in this case, that you, gentlemen of the jury, who are
constituent parts of its governmental machinery, go out in
this case and do your plain duty. In accordance with my
duty as the representative of the State, I can ask nothing less
and be honest, though I have profound pity for this woman
and her poor old father, even to the point of regretting that

484 XIV. AMERICAN STATE TRIALS.

it became my humble duty to act as counsel in her prosecu-
tion. The case is with you, gentlemen of the jury, and may
God give you the grace and the strength to perform your
sad but plain duty.

THE JUDGE'S CHARGE.

Judge Lueck. Gentlemen of the Jury: In the regular and usual
progress of a jury trial it is the duty of the presiding judge,
after the arguments of counsel are concluded, to give, in a charge,
the law by which the jury are to be guided in their deliberations
and in view of which they are to find their verdict; and it is now
my duty to instruct you as to the law applicable to this case. With
the decision of the facts I have nothing to do; and you are not
to infer from any ruling or statement made by me during the
progress of the trial that I have any opinion as to the guilt or
innocence of the accused or as to any issue of fact in this case.
All rulings were made with the one purpose in view, namely, of
presenting this case to you, who are the sole judges of the facts,
lor a determination of the facts on only such evidence as the law
recognizes to be proper. However, it is for the court alone to pass
upon the questions of law involved and it is your duty to receive,
accept and be guided by the law as given you in these instructions.
Personal views and opinions of counsel on either side, if any were
expressed must have no place in your deliberations. Counsel
have no right to offer them to you and you must not be guided
or swayed in any way by such statements. While you are to con-
sider the arguments of counsel in so far as they will assist you in
arriving at a just verdict upon the evidence produced in court,
you should not in considering the case adopt as your own the con-
clusions of counsel on either side. You are to draw your own con-
clusions from the evidence in the case. As the sole judges of the
facts in the case you are to determine your verdict from the evi-
dence produced upon the trial under the law as given to you by the
court.

The defense of insanity is one recognized in the law; and if in-
sanity is found in truth to exist it is a perfect defense to an in-
formation for murder. You should give to it the same careful
consideration that any other defense to a criminal accusation of
this kind would be entitled to receive, yielding to the defendant
the benefit of every reasonable doubt on the issue if any such arises
from a consideration of the whole case. But if after a careful con-
sideration of all the evidence in the case, you have no reasonable
doubt as to the sanity of the defendant at the time of the commis-
sion of the alleged offense, you should not make use of this
defense merely as an excuse for the acquittal of the defendant.

The word "insane" means such abnormal mental condition, from
any cause, as to render the accused at the time of committing the

GRACE A. LUSK. 485

alleged criminal act, incapable of distinguishing between right and
wrong and so unconscious at the time of the nature of the act
which she is committing, and that commission of it will subject
her to punishment.

Keep in mind that the condition which gives immunity from pun-
ishment is a mental, not a moral, condition. Perverted affections,
moral feelings or sentiments, unaccompanied by mental disturbance,
furnish no excuse for a criminal act. Even if you should find that
Dr. Roberts is more to be blamed than the accused for the relations
that grew up and existed between them, it would furnish no excuse
or justification for the taking of the life of Mrs. Roberts. The evi-
dence as to those relations is to be considered by you in determin-
ing the mental state of the defendant at the time when Mrs.
Roberts came to her death. Irresistible impulse, that is, passionate
propensity, no matter how strong in persons not insane, is not recog-
nized in the law as an excuse for a criminal act. One cannot claim
immunity from punishment for a wrongful act, consciously com-
mitted with consciousness of its wrongful character, upon the
ground that through an abnormal mental condition he did the act
under an uncontrollable impulse. One, at his peril of punishment,
commits an act while capable of distinguishing between right and
wrong and conscious of the nature of the act, though his condition
may effect the grade of the offense.

In order to be responsible, he must have sufficient power of
memory to recollect the relation in which he stands to others and
in which others stand to him; that the act he is doing is contrary
to the plain dictates of justice and right, injurious to others and
a violation of the dictates of duty. Although he may be laboring
under partial insanity, if he still understands the nature and char-
acter of his acts and its consequences; if he has a knowledge that
it is wrong and criminal and a mental power sufficient to apply that
knowledge to his own case and to know that if he does the act he
will do wrong and receive punishment, — such partial insanity is not
enough to exempt him from responsibility for criminal acts.

But it must be kept in mind that the question of insanity as a
defense to crime relates to the moment of the offense. However
sane one may have been at all other times, if actually insane within
the legal definition as given you — if mental disease exists which
destroys his capacity to rationally apprehend the significance of
his acts or his responsibility therefore, he is exempt from criminal
responsibility and it is immaterial how that condition came about,
whether by his own voluntary act or otherwise.

Medical men have been called as experts by both the state and
the defendant to give opinions as to the mental condition of the
defendant. Such opinions, whether based upon personal observa-
tion of the defendant or upon hypothetical questions embodying
facts claimed to have been testified by other witnesses, are to be
considered by you in connection with the other evidence in the
case. But you are not to act upon this expert testimony to the

486 XTV. AMERICAN STATE TRIALS.

entire exclusion of other testimony, and it ought not be allowed
to overcome facts that may be established beyond a reasonable
doubt. You are not to take for granted that the statements con-
tained in the hypothetical question are true. On the contrary you
are to carefully scrutinize the evidence and from that determine
what, if any, of the statements in the questions are true and what,
if any, are not true. Even where medical witnesses have attended
the whole trial and heard the testimony of the other witnesses as to
the circumstances of the case, they are not to judge of the credit
of the witnesses or of the facts testified to by others. This is your
exclusive province because it is for you to decide what facts have
and what have not been proven on the trial. Should you find from
the evidence that some of the material statements contained in a
hypothetical question are not in accordance with the facts, or that
material facts established beyond a reasonable doubt have been
omitted and that they are of such a character as to entirely or
partially impair the value of the opinion you will attach only such
weight, if any, to the opinion as may be warranted by the facts
as found by you. These expert witnesses are not to determine the
sanity or insanity of the defendant; that is for you and you alone
to decide from all the evidence in the case.

In determining the mental condition of the defendant at the time
the offense was committed, you should take into consideration the
opinions of the medical experts and testimony, of the statements,
acts and conduct of the defendant at and about the time when
Mrs. Roberts was killed and before and after that time, the prob-
ability or improbability that a person of defendant's character and
habits would if sane commit an act like the one with which the
defendant stands charged; also all of the testimony bearing upon
her past history as tending to show her habits, customs, manners
and nature together with the afflictions, if any, from which she
suffered and which the evidence shows had a bearing on her mental
condition as well as the mental afflictions, if any, of her immediate
and remote ancestors and relations by consanguinity or blood rela-
tion and which the evidence shows there is a probability that de-
fendant inherited, and all the facts and circumstances which shed
any light upon that question.

Every person is presumed to be sane. But that is a mere pre-
sumption of fact and may be rebutted by the evidence. And if
taking all the evidence together you have a reasonable doubt as to
the sanity of the defendant at the time of the commission of the
alleged offense you should find her insane.

If after a careful consideration of all the evidence in the case you
find that, any mental aberrations or sickness of mind, produced by
any cause, perverted defendant's judgment, memory and reason so
that she was thereby rendered incapable of realizing the nature
and quality of the act she was doing, or that it was wrong, or if
you have a reasonable doubt as to whether she was sane within
the meaning of the term as defined by me, then it is your duty to
find her insane.

GRACE A. LUSK. 487

The general plea of not guilty presents two propositions; first,
whether the defendant shot and killed Mrs. Roberts; and second,
if you find that the accused fired the fatal shot you will determine
the grade or degree of crime committed by her. If you have a
reasonable doubt about whether the defendant killed Mrs. Roberts
a verdict of acquittal must be returned. If you are satisfied beyond
a reasonable doubt that Grace Lusk shot and killed Mrs. Roberts
and that she was sane at the time, you will find her guilty of that
one of the three grades of criminal homicide which the evidence
satisfies you beyond a reasonable doubt was committed by her,
namely, either murder in the first degree, murder in the second
degree or manslaughter in the third degree. These three degrees
of criminal homicide are graded by the laws of "Wisconsin as to
severity of punishment in the order in which I have just stated
them. If you have a reasonable doubt as to which offense was
committed by her, you will give the defendant the benefit of such
reasonable doubt by finding her guilty of the lesser offense, pro-
vided the evidence convinces you beyond a reasonable doubt that
she is guilty of such lesser offense.

By the statutes of this state murder in the first degree is defined
to be "the killing of a human being wilfully and from premed-
itated design to effect the death of the person killed." The term
"wilfully" means intentional, as distinguished from accidental.
"Premeditated design" means the mental purpose, the formed intent
to take human life.

It is not necessary that the formed intent or mental purpose shall
have existed for any particular length of time before the crime
was committed. It is sufficient if there was a design and a deter-
mination to kill distinctly formed in the slayer's mind at any
moment before, or at the time that the fatal wound was inflicted.
There need be no appreciable space of time between the intent to
kill and the act which caused death.

The jury must be satisfied, beyond a reasonable doubt, that the
act of the accused not only resulted in the death of Mrs. Roberts,
but they must be further satisfied beyond a reasonable doubt that
the accused entertained the essential felonious intent, that is, a
premeditated design to kill before a conviction can result. But if
a person inflicts a fatal wound upon another by an act naturally
and probably calculated to produce death, the law presumes that
such person, when the act is perpetrated, foresaw and intended the
result which followed, and hence is guilty of murder in the first
degree unless the evidence raises a reasonable doubt as to the pre-
meditated design to take human life.

The essential elements of murder in the second degree of homi-
cide are: first, an act imminently dangerous to others; second, an
act of such a character as to evince a depraved mind regardless of
human life; third, absence of any premeditated design to effect the
death of the person killed, or of any human being; fourth, ab-
sence of heat of passion; fifth, that the act must be a voluntary
act as distinguished from an accidental or inadvertent act.

488 XIV. AMERICAN STATE TRIALS.

The chief difference between the two degrees of murder consists
in this: in murder in the first degree premeditated design to effect
the death of the person killed must be present, while in murder in
the second degree the felonious intent is inferred or implied as a
matter of law from the slayer's act.

"Imminently dangerous to others," means that the act must be
inherently and consciously dangerous to life and not such as pro-
duces death by misadventure. It must be dangerous in and of it-
self when committed.

The essential elements of manslaughter in the third degree of
crime are: first, death caused by a dangerous weapon; second, the
infliction of the fatal act while the slayer is in the heat of pas-
sion; and third, absence in the slayer's mind of the design to
effect death.

The term "design to effect death" means formed intent to kill;
and the term, "heat of passion" means such mental disturbance
caused by a reasonable, adequate provocation as would ordinarily
so overcome and dominate or suspend the exercise of the judgment
of an ordinary person as to render his mind for the time being
deaf to the voice of reason; make him incapable of forming and
executing that distinct intent to take human life essential to mur-
der in the first degree and to cause him, uncontrollably, to act from
the impelling force of the disturbing cause, rather than from any
real wickedness of heart, or cruelty, or recklessness of disposition.
And this "heat of passion" is the feature that reduces the killing
of a human being from murder in either of the degrees mentioned
to manslaughter.

A condition, no matter how caused, that does not amount to legal
insanity but which overpowers and controls reason, reduces the
offense from murder in the first degree to one of the lesser degrees
of criminal homicide referred to. But if reason was not so com-
pletely dethroned but that the defendant, at the moment of the
shooting was able to exercise her judgment, then mere words
spoken by the deceased, however approbious, obscene, abusive or
insulting they may have been, cannot justify the shooting nor re-
duce in grade or degree the criminal character of the act.

It is proper for the jury in arriving at their verdict to consider
whether there was or was not a motive for the commission of the
alleged crime by the accused. Proof of motive to commit the crime
alleged in the information is not, hoAvever, indispensible or essen-
tial to a conviction; and the state is not obliged to prove a motive
on the part of the defendant. But testimony as to motive or ab-
sense of motive is to be considered by you in connection with the
other evidence in deciding the issue in this case. Intent and
motive are not identical in meaning. There is a clear distinction
between these two terms. "Motive" is the moving power which
impels a person to do a specific act. The word "intent" is equiva-
lent to the word "purpose" and denotes a design to accomplish a
definite result. Where a specific intent is an essential element of a

GRACE A. LUSK. 489

particular crime, such intent must be found to exist beyond a
reasonable doubt before a verdict of guilty can result. Motive is
never an essential element of a criminal offense.

The information filed by the district attorney is of itself no evi-
dence whatever of the guilt of the accused. It is merely a formal
charge made for the purpose of putting the defendant on trial,
and no inference is to be made against her from the fact that she
is on trial. She is not obliged to prove herself innocent; her plea
of not guilty puts upon the state the burden of proAang her guilt
beyond a reasonable doubt.

The defendant comes into court and enters upon this trial with
the presumption of innocence in her favor, and this presumption of
innocence attends the defendant from the beginning of the trial
to the end thereof and prevails and must prevail unless overcome
by evidence sufficiently strong and convincing to satisfy you of her
guilt beyond a reasonable doubt. And each and every element of
the offense must be established beyond a reasonable doubt; and if
the testimony in the case leaves your minds in reasonable doubt as
to whether any essential element of the offense is lacking, then
you should acquit the defendant of such offense.

Each juror should be satisfied of the guilt of the defendant before
a verdict of guilty can result. If any one juror has a reasonable
doubt of the guilt of the defendant she is entitled to the benefit
thereof and it is not the duty of such juror, while having such a rea-
sonable doubt to surrender his convictions even if a majority or all
the other jurymen are against him. It is, however, the duty of each
juror, while the jury are deliberating upon their verdict to give
careful consideration and attention to the views his fellow jurymen
may present upon the evidence in the case. A juror should not close
his ears and stubbornly stand upon the position he first takes re-
gardless of what may be said by the other jurors upon the testi-
mony, facts and circumstances proved in the case.

The "reasonable doubt" mentioned, means a doubt resting in
reason and founded on or arising out of, or for want of, evidence
produced in court, and such a doubt as would cause an ordinarily
prudent man to pause and hesitate to act in the most important
affairs of life. Stated in other words a reasonable doubt is that
state of the case^ which after the entire comparison and consider-
ation of all the evidence leaves the mind of the jurors in that con-
dition that they can not say they feel an abiding conviction to a
moral certainty of the truth of the charge. Doubts that do not
arise from the evidence, or want of evidence, or are purely imag-
inary, fanciful or speculative, should not influence your verdict.
It is not necessary that you should be satisfied beyond all pos-
sibility or suspicion of doubt. You are not to search for doubt,
but you are to search for truth.

You are the sole judges of the credibility of the witnesses and
of the weight to be given to the testimony of each. In considering
this you should take into consideration the opportunity the several

490 XTV. AMERICAN STATE TRIALS.

witnesses have had of seeing and knowing the matters and things
about which they have testified, their conduct and demeanor while
testifying, their interest or lack of interest, if any, in the result
of the trial, the probability or improbability of the truth of their
several statements in view of and after considering all the testi-
mony, facts and circumstances proved in the case.

Certain testimony has been admitted of alleged statements
claimed to have been made by the defendant a few days after June
21, 1917, while she was at the hospital. In weighing and consider-
ing testimony, statements of the accused, if they tend to prove
guilt, may be considered by the jury, if such statements are clearly
and satisfactorily shown to have been made. But testimony as to
alleged statements should be scrutinized with extreme care and
caution. And in determining the weight that you will give to the
testimony of statements claimed to have been made by the accused,
you will take into consideration the conditions under which they
were made and the influence of her surroundings upon her mind;
that witnesses in testifying to conversations, in which statements
are alleged to have been made, may, by inadvertently or purposely
substituting their own language for that of the accused convey a
meaning different from that intended by her; also the weakness of
human memory and the danger of mistake through the misappre-
hension of witnesses or in the misuse of words; and all the facts
and circumstances which shed any light upon the value of such
testimony.

Testimony has been received in this case of the good reputation
of the defendant as to being a law abiding and peaceful citizen
previous to the time it is alleged that she committed the offense
charged in the information. Such testimony should be considered
by you in connection with all the other evidence in the case, and if
after such consideration you entertain any reasonable doubt as to
the guilt of the defendant you should acquit her; but if from all
the evidence in the case, including the testimony as to the good
reputation of the defendant, you are satisfied of her guilt beyond
a reasonable doubt then it is immaterial what her reputation has
heretofore been as to being a peaceful and law abiding citizen.

The case is now with you, gentlemen of the jury. Carefully
weigh and consider all the testimony, facts and circumstances
proved in the case; and without bias, passion or prejudice, fear or
favor, arrive at your verdict and fearlessly pronounce whatever
conclusion the facts and circumstances of the case may force upon
your minds.

THE VERDICT AND SENTENCE.

May 29.

At 5 :30 the Jury retired and at 9 :30 came into Court and
handed the following paper to the Clerk which he read :

GRACE A. LUSK. 49]

"We, the jury, find the defendant, Grace Lusk, guilty of
murder in the second degree.

W. H. MEADOWS,

Foreman. ' '

Immediately the Prisoner attacked the Circuit Attorney,
grabbed him around the neck with her hands, scratched his
face and threw him to the floor. She had to be forcibly
taken from the court-room to the jail where she continued
to be violent of speech and action. Because of her conduct
Judge Lueck appointed a special commission of insanity ex-
perts to make a special inquisition on the question of her
sanity after the verdict. This special commission continued
observations of her until June 18th.

The members were called as witnesses and examined by the
Court. They unanimously agreed and testified that she was
sane. A motion for a new trial came up at the same time.
The Judge thereupon found that she was sane and denied the
motion for a new trial and she was thereupon sentenced to a
term of nineteen years in the Wisconsin State Penitentiary
at Waupun, Wis. When the Judge reached that part of the
sentence, ' ' nineteen years, ' ' the prisoner fainted or pretended
to faint and would have fallen to the floor had she not been
caught in the arms of her counsel. She was taken back to the
jail and the following day taken to Waupun to commence her
sentence. No appeal was taken to a higher court.

THE TRIAL OF JAMES DALTON FOR FALSE
PRETENSES, NEW YORK CITY, 1823.

THE NARRATIVE.

A cargo of butter was on sale at a wharf in New York
City and James Dalton bought a tub of it from the owner,
telling him that he was a grocer at No. 77 Chatham street and
that he would pay for it when he returned the tub. In a
day or two he came back with the tub, paid for the butter
and said that as it was good he would take three tubs
more which the owner let him have. But he never came back
again to pay for the three tubs and when it was discovered
that no such person carried on business at 77 Chatham
street, he was arrested and indicted for obtaining the three
tubs by false pretenses.

On the trial, the owner testified that he would not have
let the prisoner have the three tubs of butter had he not
said he was a grocer at 77 Chatham street and had he not
paid for the first tub he purchased. Dalton 's lawyers set
up three defenses which were all law points: 1st, that the
statement as to his business and residence was not a false
pretense within the statute; 2nd, that as the owner relied
on his having paid for the first tub as well as on the false
statement there was no crime ; 3rd, that the owner was
guilty of negligence, as he could easily have verified his
statement before he parted with his property.

The court ruled against Dalton 's lawyers on the first and
third points but in his favor on the second, holding that a
false statement in order to be punishable must be the sole
inducement for parting with the property.

(492)

JAMES DALTON. 493

THE TRIAL.1

In the Court of General Sessions, New York City, De-
cember, 1823.

Hon. Richard Riker,2 Recorder.

December 6.

James Dalton was charged with obtaining three tubs of
butter from William Hammelin by a fraudulent pretense.
The indictment set out that he had represented "that he was
a grocer at No. 77 Chatham street when he, the said James
Dalton, was not at the time mentioned, a grocer residing at
No. 77 Chatham street nor at any other place in the City
of New York."

The prisoner pleaded not guilty.

Hugh Maxwell,3 for the People.

Francis A. Blake,4" for the Prisoner.

THE EVIDENCE.

William Hammelin. My ship permitted Dalton to take away
was lying at a wharf here last the butter, relying on his prom-
29th of October when Dalton ise for payment. Dalton re-
whom I had not seen before, turned the tub, paid for the
came on board and bought a butter and stated that as it was
tub of butter, stating that he good he would take three tubs
was a grocer residing or doing more. I assented to this, but the
business at No. 77 Chatham prisoner did not again make his
street in this city. He did not appearance. A few days after-
pay for it; he said he would do wards I discovered that his
so when he returned the tub. whole story was false and that
It was customary amongst mas- no such person resided at 77
ters of vessels to trust gro- Chatham street. I certainly
cers residing in the city. I ac- should not have trusted Dalton
cordingly, without hesitation, had it not been for his repre-

i Wheeler's Criminal Cases. See 1 Am. St. Tr. 108.

2 See 1 Am. St. Tr. 361.

s See 1 Am. St. Tr. 62.

•i Francis Arthur Blake (1796-1824). Born Boston, Mass. (son
of Francis Blake of Worcester), married Elizabeth, daughter of
Judge Thomas Dawes, of Boston, (born 1795) but left no issue. His
widow afterwards married Joseph Cowden, by whom she had issue.
He graduated Harvard 1814 and died at New York. See "A Record
of the Blakes of Somersetshire" . . . from the Notes of the late
Horatio G. Somerby, Boston, 1881.

494 XIV: AMERICAN STATE TRIALS.

sentation as to his place of resi- on his first purchase? Yes, I
dence and his occupation. should not have parted with the
Mr. Blake. Were you prepos- butter last purchased had not
sessed in favor of the prisoner Dalton bought and paid for the
by this apparent honesty in ful- former quantity. This I re-
filling the promise he had made garded as a cunning device.

Mr. Blake. There can be no dispute with regard to the facts
in this case. I have not the slightest disposition to vindicate the
moral honesty of the prisoner but I do believe he is in point of
law entitled to an acquittal. The questions we shall raise however
will be addressed entirely to the consideration of the court.

The Recorder. The court at present entertains an impression
that the prisoner, on the whole case, should be convicted, but as
some confusion exists amongst the authorities, it would perhaps
be advisable in order to settle the law, to suffer a verdict to pass
by consent against the prisoner, reserving the case for the opinion
of the court.

Mr. Blake. I shall not object to the course proposed provided it
is fairly understood that the prisoner's counsel should not, owing
to consent, be confined after verdict to a mere motion in arrest
of judgment founded on the record; but that the whole law arising
on the evidence should be open for discussion on the argument of
the motion.

Mr. Maxwell consented.

The Recorder. Gentlemen: I direct you to return a verdict of
guilty. The questions in dispute are all questions of law which will
be argued before me later and if it shall appear that the law does
not reach the case the prisoner will have another jury.

The Jury thereupon rendered a verdict of guilty.

Mr. Blake. Your Honor, it will not be contended I presume by
the counsel for the people that this case would have afforded good
ground for an indictment either at common law or under the
statute 33 Hen. VIII. c. 1. Dismissing then at once the numerous
cases which were adjudicated prior to the enactment of the stat.
30 Geo. 11. c. 24. let us see how far this prosecution can be sus-
tained under that statute and under our own.

By the 18th sec. of the statute (1 N. R. L. 410) it is enacted
that "every person who shall hereafter be convicted of knowingly
and designedly, by false pretense, obtaining from any other person
any money, goods or chattels or other effects with intent to cheat
or defraud any person etc. shall be punished by fine and imprison-
ment or either" etc.

I contend that the indictment in the present instance does not set
forth a sufficient false pretense within the statute, on two grounds:
first, the charge against Dalton consists in the uttering of a mere
naked falsehood whereby he obtained the goods from Hammelin
on the faith of his own assertion only, and 7m own personal re*
sponsibility, without borrowing credit by using the name of any

JAMES D ALTON. 495

other person whatever; in which case, I say, no indictment will
lie. Again; I shall insist, that the pretense set forth in the indict-
ment is such an one as might have been guarded against by the
exercise of ordinary prudence on the part of the seller; that, by
failing to exercise such prudence, he has been guilty of a culpable
neglect — of such laches as destroys his right of resorting to this
tribunal; and that whether this is apparent on the face of the in-
dictment or not, is a question of laic, proper for the consideration
of the court on a motion in arrest of judgment.

Should the opinion of the court be against the prisoner on these
two points, and should it be decided that sufficient appears on the
record to authorize a judgment, I shall still contend, that a fact
was disclosed in evidence dehors the indictment, which rendered
it the peremptory duty of the jury to acquit, and that we are there-
fore entitled to a new trial. It appeared from the testimony of
Hammelin, that he parted with his goods, not solely on the pretense
set forth in the indictment, but owing to that pretense conjoined
with the fact of Dalton's having purchased a quantity of butter of
him previously, and having paid for it according to his promise,
whereby Hammelin had been inspired with confidence in his hon-
esty. I hold it to be true in principle, as well as settled, by au-
thority, that the false pretense alleged must be the sole inducement
to credit; and that whenever another motive appears to have
operated on the mind of the seller, the case does not come within
the provisions of the statute.

Having briefly stated the grounds on which I shall rely in this
defense, I would beg leave, once for all, to express my own views
and opinions with regard to the morality of the transaction. I
do not mean to offer a single suggestion in favor of the honesty
of the prisoner, or to attempt for one moment a vindication of his
character. If the principles of criminal jurisprudence could with
propriety be extended to the punishment of every dereliction from
social duty, I should not at the present time appear before this
court in his defense. It is not, perhaps, to be regretted, that he
has already suffered an imprisonment of considerable duration,
while this prosecution has been pending. While I admit, however,
the moral turpitude of his conduct, I would remark, that his offense
belongs, in my opinion, to a class of cases which human legislation
cannot with safety embrace. Treason, murder, and robbery are
well defined public wrongs, and may well be punished by human
laws. Falsehood, ingratitude, and numerous instances of the most
disgraceful violations of confidence and trust are also crimes; but
they are crimes for which the perpetrator is, necessarily, amenable
only to his conscience and to his God.

These remarks, I conceive, are applicable, in their fullest extent,
to the offense with which the prisoner stands charged in the indict-
ment now under consideration. It is impossible to distinguish this
from any other case in which a man obtains goods on his own r&-
sponsibility, by means of a mere untruth. This has been repeatedly

496 XIV. AMERICAN STATE TRIALS.

held insufficient; but, before I proceed to cite or comment on
adjudged cases, let us for a moment consider the point as it regards
principle, and see what would be the consequence of a recognition
of the opposite doctrine.

J. S., in order to obtain a loan of money, represents himself to
be perfectly solvent, and that the amount of his estate much exceeds
his just debts. His pretense is successful, and he accomplishes his
object. It afterwards appears conclusively, that this is an inten-
tional and impudent falsehood. Would an indictment lie against
J. S. on the statute in question? I trust it would not. — T. N. obtains
goods on credit, by displaying a list of his debtors; amongst whom
he enumerates divers persons as indebted to him in a large amount,
and states them all to be persons of responsibility and credit. It
is proved, that at the time of the representation, not one of those
persons was solvent, and that this fact must have been known to
T. N. when he made it. Here, too, is a gross falsehood; yet I pre-
sume it will not be contended that T. N. is therefore indictable.
Nevertheless, each of these false representations "relates to an
existing fact." — They are not "representations as to what will or
will not happen." If, therefore, no indictment could in either in-
stance be sustained, I would, with much deference to the opinion of
the learned judge who presided at the decision of the case of James
Conger, (4 C. H. R. 68.) suggest, that the first distinction taken
in that case extends the principle farther than expediency, public
policy, or authority will warrant.5

Innumerable instances daily occur, (and that too amongst men
who sustain a high reputation, both in the mercantile world and
in society at large,) in which credit is obtained by means altogether
inconsistent with honorable principle and strict integrity, and
where falsehood forms the principal ingredient in the fraud. It is
to be regretted that human justice cannot, consistently with sound
policy, reach such cases. If this were attempted, however, so nu-
merous would be the accusations presented for the adjudication of
courts of criminal jurisdiction — so infinitely various would be the
circumstances and complexions of those cases — so uncertain would
be the landmarks of the law— that it would become totally impos-
sible to establish any general rules on the subject of frauds.

Aware of this difficulty, courts have been compelled to adopt the
following as a general principle: "Where a man makes use of a
fa^e token, or any deceit or artifice calculated to gain credit beyond
his own assertion, or his act predicated on his own responsibility,
and by such means obtains money or goods, this offense falls within
the statute, and the defendant is liable to its penalty." (George

s In the case alluded to (4 C. H. R. 68) the Mayor in pronouncing
the opinion of the Court says, "A false pretense must relate to an
existing fact. Any representation as to what will or will not hap-
pen, cannot in our opinion, be considered as a false pretense. This
marks the distinction between a false promise or a false representa-
tion and a false pretense within the statute."

JAMES D ALTON. 497

Lynch's case, 1 C. H. R. 139.) This I conceive to be the true limita-
tion of the rule; and I do not think it necessary to resort to a
single argument to show that the pretense laid in the indictment
does not come within it.

The same principle decided in Lynch's case is recognized in
Cromwell and Field's case, (3 C. H. R. 38.) and in Dinah Perry's
case. (1 C. H. R. 164.) In the case last mentioned it appeared,
"that the prisoner came to the shop of one George Lee,
in Greenwich street, and called for a pair of morocco shoes,
stating that she lived with Mrs. Newton, who resided but a
short distance from Lee; and that if he would suffer her to take
the shoes she would carry them to her mistress, and if they suited,
she, the prisoner, would return the money; otherwise the shoes.
The prisoner not returning, Lee went in pursuit, and found the
prisoner did not live with Mrs. Newton, but had embarked on board
a sloop to go up the North River, and he took the shoes from her
possession. His honor the mayor charged the jury, that the offense
of obtaining goods by false pretenses under the statute, was not
supported by the testimony in this case. This was not a false rep-
resentation against which ordinary prudence could not guard. Had
the prisoner made use of any artifice or circumvention whereby she
had obtained the goods on the credit of Mrs. Newton, then her of-
fense would have been within the statute; but according to the
testimony it appeared, that by a resort to a falsehood merely, the
prisoner obtained the property on her own credit." The court con-
cluded by stating to the jury, that a conviction would furnish a
dangerous precedent; and an immediate acquittal was the result.

Now, I would beg leave to suggest, that if the decision in the case
last cited be law, and if it be true that the defendant by represent-
ing that she lived with Mrs. Newton, and was her servant, was not
guilty of such a "fraud and circumvention" as would bring her
case within the statute, but "of a falsehood merely," then James
Dalton, the defendant, does not appear, from the allegations of the
indictment, to have committed an offense cognizable in this court.

In Dinah Perry's case, the defendant stated that she lived with
Mrs. Newton, and that Mrs. Newton was her mistress. It appears
on the face of the indictment under consideration, that Dalton rep-
resented himself to reside at No. 77 Chatham street, and that he
was a grocer. Here is in each instance a falsehood as to residence
and occupation. These falsehoods were in each case the means of
obtaining credit, and they are, therefore, parallel.

If Dinah Perry had procured the goods under a representation
that she had been sent by her mistress for them, the charge against
her would have been sustained. So would it have been in the
present instance, if James Dalton, the defendant, had represented
that he was the agent of a grocer transacting business at No. 77
Chatham street, and that he had sent him for the butter.

In either of the cases supposed, the defendants would have been,
respectively, guilty of "making use of a deceit calculated to gain

498 XIV. AMERICAN STATE TRIALS.

credit beyond their own assertion, or their acts predicated on their
own responsibility," which we conceive to be the gist of the offense.

We trust this distinction, which we believe to be a sound one,
has been sufficiently enforced, both on principle and by authority.
If the name and credit of any individual, ether than the defendant,
was introduced and used, at the time of obtaining the goods, he is
guilty. On the other hand, if his relation amount merely to the
assertion of any facts with regard to himself, or of his own credit
end responsibility, and if on that relation the seller part with his
goods, the defendant is guilty of a dereliction from moral honesty,
but not of an indictable crime.

In order to render the distinction for which we contend more
clear, we shall refer to some cases, in which the accused has been
convicted on the ground that he made use of the credit and name
of another individual. (Miller's case, 12 Johns. 292. Joseph
Heath's case, 1 C. H. R. 116. Peter Johnson's case, 1 C. H. R. 116.
Eli B. Mott's case, 3 C. H. R. 155. Solomon Valentine's case, 4 C.
H. R. 36.)

Should the court, notwithstanding the suggestions which have
been offered on this subject, be of opinion that the prisoner may
be guilty under the statute, even when the pretense with which he
stands charged consists in a mere falsehood, calculated to obtain
property on his own responsibility, I shall insist on his discharge
on the following ground: The pretense laid in the indictment is
not such an one as Hammelin could repose confidence in, con-
sistently with ordinary prudence and caution.

I deem it unnecessary to dilate on the importance of precluding
him from all recourse to this court, unless he has, in his transac-
tions with the prisoner, made use of such diligence and care. Were
every individual who thought proper to part with his property, on
the idle and groundless representations of a stranger, allowed to
resort to the criminal tribunals of his country, the attendant evils
and inconveniences would be innumerable. One of the principal
of these would be, the diminution of vigilance and caution on the
part of the seller. Few would suspect a man of resorting to false-
hood and deception for the purpose of obtaining goods to a trifling
amount, if a severe and ignominious punishment were, in all cases,
the certain consequence of detection. Caution would be destroyed,
and the bold and artful depredator would find in the confiding and
unsuspicious citizen an easy prey. The number of offenders would
accordingly be increased, and the catalogue of crime, instead of
being diminished, would be swelled almost beyond conception. It
is surely better, then, to refuse to heedlessness a legal sanction,
and to adhere to the universal maxim of the law, that courts of
justice were instituted for the protection of the vigilant and the
watchful, and not of those who slumber.

This principle is clearly stated in the case of Cromwell and
Field. (3 C. H. R. 38.) "Admitting it to be false," (says his honor
the mayor, in the case alluded to,) "that Cromwell was solvent, and

JAMES DALTON. 499

that Haviland and Field would become his endorsers, it "was but a
naked falsehood concerning his own circumstances and giving an
endorser, and, therefore, not indictable on the ground- of obtaining
goods by false pretenses. It -was in the power of Otis and Swan to
inquire for themselves as to the credit of Cromwell, and, also, to
ascertain whether Haviland and Field would become his endorsers;
and it was, also, in their power to keep themselves completely se-
cured by retaining possession of the goods until the note with the:
endorsement was furnished. When goods are sold for cash, or for
notes, the delivery of the goods, and the payment of the money, or
the furnishing the notes, are legally to be considered as concurrent
acts; and if, from the confidence placed in the purchaser, or from
courtesy, the goods are delivered without the money or the notes,
a non-compliance with the contract cannot afterwards be converted
into a criminal offense." . . . "If merchants do their business
in this manner, and place reliance on the bare assertions of indi-
viduals, when they have it in their power to ascertain the truth
of their representations, and, also, amply to secure themselves by
retaining the possession of their goods, they ought not afterwards
to be permitted to make it the subject of a criminal prosecution.
It is their duty, as well as their right, to be prudent and circum-
spect, and thereby to prevent such impositions."

In full accordance with this opinion, are the decisions in George
Lynch's case, (1 C. H. R. 139.) Dinah Perry's case, (1 C. H. R.
1G4.) John Ring's case, (1 C. H. R. 7.) and the doctrine of the
English courts, as it is laid down by Mr. East, (2 Eas. PI. Cr. 818.)
and by other writers of eminence. Numerous authorities might be
cited; but I deem those I have already alluded to amply suf-
ficient to establish a point so obviously consistent with reason and
sound policy.

I admit that this principle is in some degree impugned by cer-
tain dicta in the able and elaborate opinion of his honor Mayor
Colden, in James Conger's case above cited, (4 C. H. R. 68.) Even
the dicta of that very able and distinguished lawyer are, no doubt,
entitled to the highest consideration. I would beg leave, however,
to suggest, that in the case alluded to, the operation of the statute
is extended (not merely in my own opinion, but in that of the pro-
fession in general,) farther than principle or authority will warrant.

If the court should be of opinion that the indictment cannot be
sustained, unless it allege such a pretense as could not be guarded
against by the exercise of ordinary care and prudence, let us con-
sider whether such care and prudence have in fact been exercised
in the present case.

In the excellent essay of Sir William Jones on the Law of Bail-
ments, ordinary diligence is defined to be such care "as every
prudent man commonly takes of his own goods." Hammelin
parted with his goods to a mere stranger; a man whom he had
never before seen, on his bare assertion that he was a grocer resid-
ing at No. 77 Chatham street, when he might, by the inquiry of

500 XIV. AMERICAN STATE TRIALS.

a moment, or by merely walking from his vessel to the place in
question, have ascertained fully and completely the falsity of the
tale. I assert without hesitation, and without fear of contradiction,
that this was either gross carelessness or extreme weakness. The
former must be the supposition, for every man is presumed to be
ordinarily prudent, until the reverse is proved. (Conger's case,
4 C. H. R. 72.)

Hammelin, in his testimony, stated that he acted in conformity
to the custom of captains of vessels engaged in the same trade.
This, we conceive, can have no effect as an extenuation of his
laches; for a custom, to be good, must be neither absurd nor re-
pugnant to public policy; and, if these persons generally conform
to an usage so preposterous and deleterious as the one in question,
it is high time they were admonished to abandon it by the decision
of a court of justice.

It may perhaps be urged in reply, that the question of ordinary
diligence rests exclusively with the jury. It would be sufficient
for me to say in reply to such a suggestion, that this case was
reserved, expressly, for the opinion of the court, on all the points
which might be urged in the defense. Independent of this consid-
eration, however, another presents itself, which, we trust, will have
much weight in the decision of the question. Uniformity and cer-
tainty are the great objects of the law in all its proceedings, even
in civil suits. In criminal prosecutions it is of still higher im-
portance. This object can be attained only by the adjudications
of a court, and not by the vacillating and uncertain opinions of
different juries. I will mention one instance, only, in which courts
have taken the same point under their special and exclusive control.
I allude to due diligence in the case of notice of protest to the
drawers and endorsers of bills of exchange, and to the endorsers
of promissory notes. This was at first regarded as a matter for
the jury alone. The point was utterly unsettled. It was afterwards
considered as a mixed question for the court and the jury. Still
no definite principle was established. It was at length held to be a
fair subject for the exclusive adjudication of the court, and order
and regularity followed. I conceive that the latter rule, by parity
of reason, to say the least, should be adopted in the present case.
(Kyd on Ex. 80, 81. Doug. Rep. 516, 581. Chit, on Bills, 290.)

If the court should, on the whole, be of opinion that a sufficient
false pretense is set out in the indictment, I have still another point
to urge in favor of the prisoner, which does not arise on the record,
but which I conceive affords a conclusive ground on a motion for a
new trial. It clearly appears from Hammelin's testimony, that in
parting with his property, he was influenced not solely by the pre-
tense alleged in the indictment, but, in a great measure, by a pre-
possession in favor of the defendant, in consequence of the latter's
having made an antecedent purchase, and paid the amount agreeably
to his promise.

In the first place, we would observe, that if a man obtains prop-

JAMES D ALTON. 50 \

erty from another in consequence of two or more "false pretenses f]
operating jointly on the mind of the seller, there can be no doubt;
but both must be set out in the indictment. We grant, for the sake
of illustration, that the pretense set forth in the present instance
is in itself sufficient to warrant a judgment. Let us then suppose
Dalton to have stated, (as he has done) that he was a grocer,
residing at 77 Chatham street, adding, that he was employed by
J. S. and T. N., persons of known responsibility and opulence, to
purchase the goods on their account and credit; could the present
indictment, alleging only the one pretense, have been sustained in
such a case? Surely not; for if it were only necessary to set out
the one, the defendant might be indicted at the succeeding term
for obtaining the goods on the other, (to-wit, on the allegation that
he was employed by J. S. and T. N.;) and could not avail himself
of his plea of auterfois acquit, in bar of the second prosecution,
inasmuch as it would not appear on the record that the two prose-
cutions were for the same offense. (1 Chit. Cr. Law, 368, 369. 2
Leach, 717. 1 Eas. PI. Cr. 522. 9 Eas. Rep. 437. 3 Inst. 213.)

Again, the statute in question is highly penal, and is of course
to be construed strictly. I do not insist on the frivolous and
ridiculous distinctions which have sometimes been urged, and even
sustained, in relation to this subject. I do not allege that a statute
enacted to punish stealers of "horses," would not apply to a man
who should steal a single horse; nor that an act mentioning dogs,
could with propriety be confined, by the technical scruples of grave
and learned expositors of the law, to the masculine gender alone.
But I do contend, that the counsel for the people is bound to bring
his case, substantially and strictly, within the provisions of the
act and the allegations of the indictment. These requisitions are
not complied with in the present instance, as I shall endeavor to
show conclusively to the court.

The statute provides, that "every person who shall hereafter be
convicted of knowingly and designedly, by false pretenses, obtain-
ing," &c. Now, can it be for one moment contended, that the
requisitions of this act are satisfied by evidence that A. B. obtained
goods by a certain false pretense, combined with another act?
Surely not in any case — much less when that other act, which
operated as a joint inducement, is in itself an innocent one. "Were
it otherwise an individual might be convicted under the statute
when the false pretense had no more influence on the mind of the
original owner of the goods, than another perfectly innocent act of
the accused. Nay, the pretense alleged may have had but a small
and trifling effect, compared with that of the innocent inducement.
Can the court pry into the secret impulses which actuate the
hearts of men, and influence their conduct? Can a human tribunal,
when a motive is mixed, estimate with mathematical precision the
weight of its component parts? It is absurd to pretend it! I would
venture to assert, that if Hammelin himself were here, he could
not tell which had the most powerful effect in inducing him to part

502

XIV. AMERICAN STATE TRIALS.

with his property — the pretense charged, or the prepossession
created in favor of the accused by his honesty in the first transac-
tion. The rule then must be, that to bring a case within the con-
struction which the court are bound to give a penal statute, the
false pretense set out in the indictment must be the sole act of the
accused, operating on the mind of the person alleged to have teen
defrauded.

This doctrine is distinctly recognized in the case of James Conger,
above cited, in Abraham Collin's case, (4 C. H. R. 143.) Lucre and
Markford's case, (1 C. H. R. 141.) and in William Davis's case,
(4 C. H. R. 61.) This last case I conceive to be in point.

I do not deny the authority of Robert W. Steel's case, (5 C. H.
R. 5.) There the prisoner had been several times in the store of
the person whom he defrauded, prior to the period at which he
obtained the goods in question; and the fact of his having seen the
prisoner before, operated, in some degree, with that person, as an
inducement to part with his goods on credit. Here was a mere
accidental circumstance, forming no part of the res gesta; and
which of course could not enter into the decision of the case, what-
ever weight the party injured might of his own impulse, have at-
tached to it. Nor would it perhaps have been otherwise, if the
dress or equipage, the intelligence and information of the prisoner,
or the respectability of his connections and associates, had operated
in some degree on the mind of the prosecuting witness. Indeed, it
has been repeatedly, and I believe, correctly, decided, (particularly
in James Conger's case) that these are so vague and intangible,
that the court cannot notice them in any way.

In the present instance, however, there is a distinct and sub-
stantive act of the prisoner, taking place at the very time of, and
immediately connected with, the false pretense alleged — innocent
in itself — forming part of the res gesta — and constituting an im-
portant part of the inducement. Surely, then, the accused cannot be
said to have obtained the goods solely on the pretense set forth in
the indictment; and if this be true, he must, on a new trial, be
acquitted.

In the course of my argument, I have cited, for the most part,
the decisions of this court. The reasons which have induced me
to do so are obvious. As the offense in question is created and
denned by our own statute, but few English authorities are at all
applicable; and very few cases have been decided in the supreme
court of this state. Those, however, which have been adjudged
here, are numerous; and have generally been decided on solemn and
able argument.

I now consign James Dalton to the protection of the laws; con-
fident that, whatever may have been his guilt in point of morality,
the court will remember, in the decision of his case, that "legal
forms are the barriers of justice."

The Recorder. The law which governs this case, and all others
under the statute, which makes it an indictable offense to obtain

JAMES D ALT ON. 503

property by false pretenses, with intent to cheat, is laid ably down
by Mayor Colden, in the case of People v. James Conger, decided
May Sessions, 1819, (4 C. H. R., 65.)

That case, and others to which it refers, decide, 1. That the
statute has a very extensive application, and embraces a variety of
false pretenses not punishable at common law. (People v. Johnson,
12 Johns. Rep. 292. Rex v. Young and others, 2 Leach, 574. 2
East's PL Cr. 829.) 2. The false pretense must be by words, by
writings, or by signs, and cannot consist in mere show or appear-
ance— by equipage, dress, &c. (Conger's case, 4 C. H. R., 69, 70.)
3. The pretense must be made before the property is delivered.
(John Stuyvesant's case, 4 C. H. R. 156.) 4. The pretense must be
of an existing fact. (Conger's case, 4 C. H. R., 68.) and not a mere
promise or representation that such or such a thing shall be done —
as to pay cash — that a check shall be good or paid, &c. (Ibid, 68,
69. Stuyvesant's case, 4 C. H. R., 156.) 5. But, where J. S. pre-
tended that he was the captain of a vessel from a foreign port, just
arrived, and by that means obtained goods, his offense was held
indictable under the statute. (Samuel Smith alias Captain Juben's
case, 5 C. H. R., 180.) 7. We are of opinion, that the authorities,
on the whole warrant the decision in the case last cited. It is also,
supported by the precedents to be found in English works of ac-
knowledged correctness and high reputation. (Cr. C. Comp., 303.)
This is a precedent where the defendant pretended that he was a
merchant of great fortune, and was a housekeeper, residing at
Penjo Common. The last count charged the pretense that he was a
merchant only. (6 Went. S. P. Index., tit. "Frauds," Eng. ed. 2
Starkie, 473. 3 Chitty's C. L. 1006., Eng. ed.) Applying the prin-
ciples above stated to Dalton's case, the court is satisfied that the
pretense charged in the indictment, i. e., "that he was a grocer
residing in Chatham street," is sufficient to bring him within the
statute. 7. The pretense must not be so absurd and irrational
that no man of common sense would believe it to be true. But
still it need not be so cunning and artful as to deceive a man of
ordinary caution. (Abraham Collin's case. 4 C. H. R. 149. Con-
ger's case, ib. 71.) 8. We are of opinion that, whether the false
pretense be of a nature calculated to deceive a party or not, is a
question for the jury. (Abraham Collin's case, 4 C. H. R. 143. 149.
Conger's case, 4 ib. 72. 2 East's PI. Cr. 828.)

We are of opinion, therefore, that the second ground taken by
the counsel for the prisoner is not tenable, and, accordingly, the
motion in arrest of judgment is overruled.

9. The false pretense must be the sole inducement for parting
with the goods. (John Davis' case, 4 C. H. R., 61. 2 East, 831.)
10. Though such false pretense must be the sole inducement, and
must be fully set forth in the indictment, yet accidental circum-
stances, which in conjunction with the false pretense influenced
the delivery, need not be set out. (Robert W. Steel's case, 5 C. H.
R., 5 — 7.) As the dress of the defendant, having seen him before,
and the like.

504 XIV. AMERICAN STATE TRIALS.

We are satisfied, from an attentive examination of the authorities,
that dress, style in appearance or living, keeping genteel company,
resorting to fashionable places, and, perhaps, even former dealings
with the party injured, though these circumstances may facilitate
the fraud, need not be set out if they be not necessarily connected
with the false pretense, and if they do not form part of the fraudu-
lent scheme or res gesta. In such case they do not, in judgment of
law, constitute any part of the inducement, and, consequently, need
not be laid in the indictment.

In this case, however, the witness is understood to have said in
substance, that he would not have trusted Dalton on the false pre-
tense alone; and as the motive which, in addition to the false pre-
tense, operated on the mind of the witness when he gave credit to
Dalton, may have constituted part of the res gesta; and as this was
one of the points reserved for the opinion of the court on its ma-
teriality, we, on this ground, direct a new trial.

THE TRIAL OF JOSEPH T. BUCKINGHAM,
FOR LIBEL, BOSTON, MASSACHUSETTS, 1824.

THE NARRATIVE.

The Consul of the Russian Empire at the city of Boston,
one Alexis Eustaphieve, had in some way incurred the dis-
pleasure of a newspaper of that city, The New England
Galaxy. In its issue of September 1st, 1820, it referred to
a young lady who it said was a most accomplished performer
on the piano but whose skill was due to the heartless cruelty
of her father who was sacrificing all the future prospects of
his child at the altar of ambition. In its issue of November
30, 1821, it referred to a big bear who had a bear for a wet-
nurse, who was weaned on fishes' roe and fiddlehead and
whose amusements were fishing and fiddling. And again in
its issue of November 7th, 1823 it gave an account of a dis-
turbance at a ball in the city on the previous Tuesday even-
ing where the "rugged Russian bear was a conspicuous
actor in the farce which had well-nigh turned out to be a
tragic-comedy in consequence of his attempting to jump with
his cocked hat and all down the throat of one of his op-
ponents. We give no opinion on the merits of the contro-
versey but leave it to the decision and final adjudication of
him who while acting as the representative of the Greatest
Monarch in the world, the magnanimous Alexander, the auto-
crat of all the Russias, the honorary member of the Massa-
chusetts Peace Society does not deem it a derogation from
his high vocation to become a party in the quarrels of danc-
ing masters and fiddlers."

The Russian Consul alleging that all three of the articles
referred to him the Grand Jury returned an indictment
against Joseph T. Buckingham, the editor and publisher, for
libel. There were three counts, the first upon the publication

(505)

506 XIV. AMERICAN STATE TRIALS.

of September 1st, the second upon that of November 30th
and the third upon that of November 7th.

The trial had barely begun, when the Attorney- General
was obliged to abandon the third count for it was discovered
that while the article said the ball took place on Tuesday
evening, the indictment omitted the word "evening" and as
this was the only one of the publications which described the
Russian Consul the prosecution was obliged to call witnesses
to prove that he was the person referred to in the others.

The jury being in doubt as to whether Mr. Eustaphieve
was the cruel father of the first article — for there were other
men in Boston who had daughters who excelled as musicians
— acquitted the publisher on the first count but convicted
him on the second.

THE TRIAL.1

In the Municipal Court of Boston, Massachusetts, Janu-
ary, 1824.

Hon. Peter 0. Thacher,2 Judge.

January 9.

An indictment was found by the Grand Jury of Suffolk
County at the November term, 1823. It contained three
counts. The first count charged that Joseph T. Buckingham
did on Sept. 1, 1820 print and publish in a Boston news-
paper named The New England Galaxy of which he was
editor and publisher a false and malicious libel concerning
Alexis Eustaphieve the Russian Consul in Boston and con-
cerning "the conduct of said Alexis as a parent and con-
cerning the manner of treatment by him of his daughter."
The second count charged Buckingham with printing in the
same newspaper of November 30, 1821 another libel against
Eustaphieve containing this language: "His birth and
Infancy; sucks a bear; his wet nurse licks him; weaned on
fish's roe and fiddlehead; his amusements fishing and fid-

i Wheeler's Criminal Cases, see 1 Am. St. Tr. 108. Thacher's
Criminal Cases, see 2 Am. St. Tr. 858.
2 See 2 Am. St. Tr. 859.

JOSEPH T. BUCKINGHAM. 507

dling; a set-to between the big bear and a dandy." The
third count charged that Buckingham in the same newspaper
of November 7th, 1823 printed a false account of a disturb-
ance at a ball on Tuesday, November 4th at which it said:
"the rugged Russian Bear was a conspicuous actor in the
farce which had well-nigh turned out to be a tragic comedy,
in consequence of his attempting to jump, with his cocked
hat and all, down the throat of one of his opponents.3"

The defendant pleaded not guilty.

James T. Austin41 for the Commonwealth; Benjamin Gor-
ham5 and Samuel L. KnappQ for the defendant.

The Jurors for the Commonwealth of Massachusetts on their oath
present, that Joseph T. Buckingham, of Boston, aforesaid, Printer,
on the first day of September, in the year of our Lord, one
thousand eight hundred and twenty,— at Boston, aforesaid, with
force and arms, maliciously contriving and intending to injure, ag-
grieve, villify, scandalize, and defame the good name, fame, and
reputation, of one Alexis Eustaphieve, who was then and there
residing in said Boston, and was then and there a Consul
accredited to the United States of America, from His Majesty
the Emperor of all the Russias, with whom the said United
States then were, and still continue to be, at peace, and intend-
ing as much as in him lay, to bring the said Alexis into contempt,
hatred, infamy, and disgrace, did compose, print, and publish
in a certain newspaper, called New-England Galaxy and
Masonic Magazine, whereof the said Buckingham was editor and
publisher, a certain false, scandalous, and malicious libel, and did
cause and procure to be published in said newspaper, the said cer-
tain false, scandalous, and malicious libel of, and concerning
the said Alexis, and of and concerning the conduct of the
said Alexis as a parent, and of, and concerning the manner
of treatment by him of said Alexis' daughter, in which said mali-
cious, false, and scandalous libel is contained, among other things,
the false, scandalous, and malicious words following, that is to say,
"We in this part of the union boast much of our skill in music, but
a few of us who have been in Europe are unwilling to see this di-
vine art treated with such little respect as to witness the total want
of taste, expression, and feeling in our musical friends. We should
no longer award the palm to those [meaning among others the said
daughter of said Alexis] who by incessant drilling under a cruel

s See ante p. 505.
4 See 1 Am. St. Tr. 44.
s See post p. 531.
o See post p. 531.

508 XIV. AMERICAN STATE TRIALS.

and heartless master, [meaning said Alexis,] have attained a ra-
pidity of fingering which serves only to astonish for a moment, but
which produces no effect upon the feelings, except pity for the al-
most lifeless automaton [meaning the said daughter of said Alexis]
whose haggard cheeks and feeble frame evince the daily drudging
to which [meaning the said daughter of said Alexis] has been sub-
jected by threats, promises, and flattery; a feeling which is not al-
leviated by the smallest ray of kindness or affection in the parent,
[meaning said Alexis,] who [meaning said Alexis] sacrifices all the
future prospects of a child's [meaning the said daughter of said
Alexis] happiness at the altar of ambition, a virtuous and enlight-
ened community should frown indignation and contempt upon the
tyrant, [meaning said Alexis]" to the great damage of said Alexis.,
to the pernicious example of all others in like case offending, and
against the peace of said Commonwealth.

And the jurors aforesaid, on their oath aforesaid, do farther pre-
sent, that said Joseph T. Buckingham, at said Boston, with force
and arms, on the thirtieth day of November, in the year of our Lord
eighteen hundred and twenty-one, farther contriving and intending
to injure, scandalize, villify, and defame the good name, fame, and
reputation of said Alexis Eustaphieve, then residing in said Boston,
and performing the duties of a Consul of the Emperor of all the
Russias, with whom said Commonwealth then was, and yet con-
tinues to be, at peace, and maliciously contriving and intending as
much as in him lay, to bring the said Alexis into public ridicule,
contempt, and disgrace, did compose, print, and publish, and did
cause and procure to be composed, printed, and published in a cer-
tain newspaper, entitled, New-England Galaxy, a most wicked,
false, scandalous, and malicious libel of, and concerning, the said
Alexis, and of, and concerning the life and opinions of said Alexis;
which said libel contains, among other things, the false, scandalous,
and defamatory words following, that is to say, "The life and
opinions of U. Stuffy, [meaning said Alexis,] 1 vol. 4to imperial
foolscap, bound in Russia] — contents, chap. 1: His [meaning said
Alexis] birth and infancy, sucks a bear, Romulus and Remus — His
[meaning said Alexis] wet nurse licks him [meaning said Alexis] —
weaned on fish's roe and fiddlehead — How he [meaning said Alexis]
gets in on every thing — His [meaning said Alexis] amusements,
fishing and fiddling."

And, also, the following false, scandalous, and defamatory words,
that is to say, "Chap. VI. His [meaning said Alexis] dislike to
Caledonian literature, and why — His [meaning said Alexis] being
taught to dance to the Scotch fiddle, and the superiority of the
latter to his [meaning said Alexis] own. — Burnt bear dreads hot
iron — Condemns the author of Waverly, supposing him to be a
Scot. A set-to between the big bear [meaning said Alexis] and a
dandy — Pro and con. concerning the same," — to the pernicious ex-
ample of all others, and against the peace of said commonwealth.

And the jurors aforesaid, on their oath aforesaid, do further pre-

JOSEPH T. BUCKINGHAM. 509

sent, that said Joseph T. Buckingham, at said Boston, with force
and arms, on the seventh day of November, in the year of our Lord
eighteen hundred and twenty-three, further continuing his mali-
cious disposition, and contriving and intending, falsely and mali-
ciously, to injure and destroy the good name, fame, and reputation
of the aforesaid Alexis Eustaphieve, the said Alexis then residing in
said Boston, and being the Consul of the Emperor of the Russias
within said Commonwealth, between whom and said Commonwealth
there then was a firm peace, and to cause a belief that said Alexis
engaged in quarrels unworthy his said station and office, did com-
pose, print, and publish, and cause and procure to be composed,
printed, and published in a certain newspaper, called New-England
Galaxy, a certain false, scandalous, malicious, and defamatory
libel of and concerning the said Alexis, and of and concerning the
conduct and behaviour of the said Alexis, at a certain place in
said Boston, commonly called Concert Hall, on Tuesday, the fourth
day of said November, at a certain exhibition and ball there given
by certain persons, called Parks and Labasse, and after the same,
which said false, scandalous, and malicious libel contains the false,
scandalous, and defamatory words following, of and concerning
said Alexis, and of and concerning his conduct at said place, called
Concert Hall, that is to say: — "Record of fashion. — The pupils of
Messrs. Parks & Labasse gave a splendid exhibition of dancing at
Concert Hall on Tuesday. The elegance of attitude, and the
gracefulness and ease of their movements, afforded a proof of the
science, skill, and taste of their instructors, and elicited the appro-
bation of a crowded and fashionable concourse of spectators. A
communication respecting this exhibition and ball has been re-
ceived, the chief object of which is to give the details of an unpleas-
ant and disgraceful disturbance which occurred in the course of the
evening. The history would not do much honor to the parties
concerned, and we [meaning said Buckingham] decline its publi-
cation at present, though it is but just to the character of Mr. Parks
to say, that we [meaning said Buckingham] have not heard that any
blame was attached to his conduct on the occasion, but that on the
contrary, he kept as much aloof as possible from the scene of anger
and confusion. The rugged Russian bear, [meaning said Alexis]
it is said, was a conspicuous actor in the farce which had well nigh
turned out to be a tragi-comedy, in consequence of his [meaning
said Alexis] attempting to jump with his [meaning said Alexis]
cocked hat and all down the throat of one of his [meaning said
Alexis] opponents. We [meaning said Buckingham] think with
our [meaning said Buckingham] correspondent, that it is best at
the present moment to give no opinion on the merits of the contro-
versy, but leave it to the decision and final adjudication of him
[meaning said Alexis] who [meaning said Alexis] while acting as
the representative of the greatest monarch in the world, the mag-
nanimous Alexander, the Autocrat of all the Russias, the honorary
member of the Massachusetts Peace Society, the grand Pacificator
of Europe, does not deem it a derogation from his [meaning said

510

XIV. AMERICAN STATE TRIALS.

Alexis] high vocation to become a party in the quarrels of dancing
masters and fiddlers," — meaning that said Alexis was a party in the
quarrel of dancing masters and fiddlers at said Concert Hall, at
the time aforesaid, and then being Consul as aforesaid, against the
peace of said Commonwealth.

Mr. Austin. The indictment contains three distinct counts, each
of which is a distinct, independent indictment and consequently a
conviction or acquittal on either would not amount to a conviction
or acquittal on either of the others. But although in the indictment
it is averred that Mr. Eustaphieve was the Russian consul, resident
here and duly accredited, it is only introduced as a description of
his person and it is not intended to urge that the publications are
libels on his official character.

THE EVIDENCE.

Jefferson Clark. Am a printer
and in the office of the Boston
Galaxy since 1817 except a few
months. My name appears in
the paper as the printer.

Mr. Austin. Have you any
financial interest in the paper?

Clark. I decline to answer.

Judge Thacher. He is not
bound to answer if the answer
would tend to criminate him-
self, but he must answer every
question which relates to Mr.
Buckingham's concern in the
publication.

Clark. Mr. Buckingham owns
the paper; he usually corrects
the proofs; when he is absent I
do. The copy shown me (Sept.
1st, 1820) is I think from our
office.

Mr. Gorham. At the time of
the first publication, in Septem-
ber 1820, was not defendant ab-
sent from town and had no con-
cern in the publication of that
number?

Mr. Austin. I object. The de-
fendant having been proved to
have been the editor and pub-
lisher of the paper generally, is
legally answerable for its con-
tents although he might have
had no concern in that particu-
lar number.

Judge Thachee. The question
is proper, for if it shall appear
that defendant on leaving town
directed his servants to exclude
the article complained of and it
was afterwards inserted by them
without authority and against
his orders, that fact would go to
the intent and would be proper
for the consideration of the jury.

Clark. At that time Mr.
Buckingham was away from the
office a good deal; he was in the
country with his family owing
to a domestic calamity. The
copy shown me of Nov. 30, 1821,
I believe was printed at our of-
fice.

Ezekiel Morse. Am a servant
of Mr. Eustaphieve. The news-
paper produced I purchased at
the Galaxy office and delivered
it to my master.

John S. Ellery. I read the
article in the Galaxy.

Mr. Austin. In your opinion
did the piece of September 1,
1820, refer to the Russian con-
sul?

Mr. Gorham.. I object to this
question. The belief or opinion
of the witness is not evidence, as
held in Vanvechten v. Hopkins,
5 Johns. 211.

Judge Thacher. The question

JOSEPH T. BUCKINGHAM.

511

is proper; although the belief
of the witness alone avails noth-
ing, yet he is bound to state the
facts on which his belief is
founded, which are proper to go
to the jury. This evidence is
not to prove an innuendo, but the
averment that the defendant
published the piece of and con-
cerning the Russian consul.

Mr. Ellery. I have known the
Eustaphieve family since their
arrival here, fourteen years ago;
have taken an interest in them
and am their friend. When I
read the article I thought at
once that it referred to the con-
sul and his daughter. The
young person is only twelve
years old but is already distin-
guished as a prodigy of musical
talent, particularly for her exe-
cution on the piano-forte. I at
once carried the paper to him;
he read it and it seemed to
wound his feelings deeply. Mr.
Eustaphieve is a kind father
and most proud of and indulgent
to his children.

Bryant P. Tilden. Have known
the consul and his family for
some time. As soon as I read
the Galaxy of September 1st I

recognized the parties intended
as him and his daughter. Could
think of no other father and
daughter in the city at this time
to whom it could refer. Am in
the insurance business; at our
offices it was discussed a good
deal and everyone took it to al-
lude to the Russian consul and
his daughter. She is an extraor-
dinary genius. Dr. Jackson the
eminent professor of music
would sit and listen to her for
hours together. Have always
heard Mr. Eustaphieve spoken of
as a most affectionate father.

William Coffin. Reside in Bos-
ton. In my opinion the piece in
the September 1st Galaxy refers
to the Russian consul and his
daughter. I know his great
fondness for music and his
daughter's remarkable talents.
They had been at that time a
subject of much conversation
among both professional and
amateur musicians in Boston.
Have always considered Mr. Eu-
staphieve a kind and indulgent
parent.

Mr. Austin read the articles in
the issues of the Galaxy of Sept.
1, 1820 and Nov. 30, 1821.

Mr. Gorman objected to the reading to the jury of the piece in
the Galaxy of Nov. 7, 1823, which was the third libel complained of;
on the ground of a material variance. The word "evening," which
is in the original publication, is omitted in the indictment after the
word "Tuesday."

Judge Thacher. In pronouncing the judgment of the court in
the case of Rex v. Beach, (Cowp. Rep. 229) on an application for a
new trial, in an indictment for perjury in an affidavit, upon the
ground of a material variance between the affidavit and the indict-
ment, the letter s being left out in the word "understood;" Lord
Mansfield says, "we have looked into all the cases on this subject;
some of which go to a great degree of nicety indeed. The true
distinction seems to be taken in the case of The Queen v. Drake,
(2 Saik. 660,) which is this, "that where the omission or addition
of a letter does not change the word, so as to make it another word,
the variance is not material. To be sure, a greater strictness is

512 XIV. AMERICAN STATE TRIALS.

required in criminal prosecutions than in civil cases; and in the
former the defendant is allowed to take advantage of nicer excep-
tions."

Dr. Drake's case, which is thus recognized with so much respect
by the court of King's Bench, was an information for a libel, in
which it was undertaken to set forth the libel "according to the
following tenor," and in setting forth a sentence of the libel, it
was recited with the word "nor" instead of "not;" but it is added,
that the sense was not altered thereby. The first point decided by
the court in this case, was that the word tenor means a transcript
or a true copy. In the second place it was held, that this was not
a tenor by reason of the variance, for "not" and "nor" are different
— different in grammar and different in sense. And Powys, J. held,
as to the point where literal omissions, &c. would be fatal, that
where a letter omitted or changed makes another word, it is a fatal
variance. Otherwise, where the word continues the same. In the
last place, Holt, C. J. said, that in pleading there were two ways
of describing a libel, or other writing, by the words, or the sense.
1. By the words, as if you declare of a libel, "the tenor of which
is as follows," or "in the words following," you describe it by its
particular words, of which each is such a mark, that if you vary,
you fail in making good their description. Or, 2. You may describe
it by its sense and meaning. Thus it is a good information to
show, that the defendant made a writing, and therein said so and
so, in which case exactness in words is not so material, because it
is described by the perfect substance of it.

I apprehend that the principle of Drake's case is applicable to the
present question. What is undertaken to be done in this third
count of the indictment? To set forth the libel "in the following
false, scandalous and defamatory words," which is in effect to set
forth the tenor, or a true copy of them. In this recital, the word
"evening" is omitted. It was justly said by the counsel for the
defendant, that "Tuesday" includes both day and evening; whereas
the writer by using the word "evening" meant to limit himself to
that part of the day. The rule of law is strict, and applies to words
as well as to sentences. We must adhere to strict rules. This is
not unreasonable, where it is easy to be correct; and it is required,
that the court may see upon the record the whole matter which is
charged as a libel. I am of opinion that the variance is fatal, and
therefore the piece cannot be read to the jury.

Mr. Austin entered a nolle prosequi as to the third count.

THE DEFENSE.

Mr. Knapp. Gentlemen of the Jury: The articles complained of
are not libelous; the first could have no allusion to Mr. Eustaphieve
and the second was a good-natured and harmless piece of satirical
writing, which only ridiculed the writings of the complainant and
was common and justifiable. The piece complained of in the first
count of the indictment, was a piece of general criticism; it con-

JOSEPH T. BUCKINGHAM. 513

tained no allusion to the prosecutor; it was general in its intent
and tendency. The prosecutor had no more right to apply the re-
marks to himself, than any man who had given a piece of bread or
a cup of water to a perishing fellow creature, had to appropriate
to himself all the eulogiums which ages had bestowed on the char-
itable and philanthropic; no more than an individual miser had to
make a personal application of all the invective and reproach
which have been bestowed on niggardliness and avarice. It could
not allude to Mr. Eustaphieve and his daughter, this was evident.
The testimony of Messrs. Ellery, Tilden, and Coffin, all proved that,
he was a kind and indulgent father. The publication alluded to,,
and concerned, a general system of education, where severity was
used to promote improvement.

In respect to the piece charged as libellous in the second count
of the indictment, it could not be believed for a moment, that the
jury could consider it as a libel. It was a mere bagatelle — such as
is found every day in the newspapers and reviews, and which no
man but one of extreme excitability ever thinks of resenting se-
riously. It might allude to Mr. Eustaphieve; but it amounted to
nothing more than an attempt to raise a laugh at his writings.
Mr. Eustaphieve was an author — he had written a play — sundry
political works — dramatic criticisms — and an epic poem. His taste
and opinions differed from those of the Americans, and he had at-
tempted to correct what he supposed to be our bad taste. The
public did not much approve his epics; but we hope posterity will
do him justice. Homer was not rewarded in his own day and by
his own countrymen, but later ages had given him the praise which
was due to him. Mr. Eustaphieve, in the piece in question, was
ridiculed as *an author. There was no imputation on his official
or moral character; there was no charge, which if true, could sub-
ject him to any sort of legal punishment; nothing which could in
the least degree affect his standing in society. It might be true,
that he was there alluded to by the word bear. But this was not a
term of reproach. The term signified, figuratively, strength and
wisdom. Bear, in hieroglyphics, according to Bailey, was used by
the ancient Egyptians, to represent a good proficient when time and
labor has brought to perfection, because bears are said to come
into the world with misshapen parts, and that their dams do so lick
the young, that at last the eyes, ears, and other members appear.
Shakespeare making king Henry say,

Call hither to the stake my two brave bears,
Bid Salisbury and Warwick come to me, &c.

E. Frothingham. Reside in who formerly lived here — his

Boston; read the article in the name was Lewis — who had two

Galaxy the day after it ap- or three children, two boys and

peared. Did not think it re- a girl, I think, remarkable for

ferred to Mr. Eustaphieve. The their musical acquirements. He

reason was that I knew a man worked them hard, his system of

514 XIV. AMERICAN STATE TRIALS.

discipline was very severe; have public to my knowledge. Can't

seen him, even at a large party say that I think now on further

strike one of his children who consideration that the article al-

made a mistake in performing. luded to Lewis. Recollect that

People talked about this a good Lewis left Boston with his fam-

deal; everybody called him most ily some time in 1820.

cruel. John Parker. Know the pros-

Thomas Minns. Remember ecutor.

Lewis and his children and how Mr. Gorham. Did not the Rus-

stern he was with them. When sian consul attend at the theatre

I read the Galaxy article I some years ago and assist and

thought they were after Lewis. direct in getting up a ballet for

John Dodd. Knew Lewis and a public exhibition?

his three children and thought Mr. Austin objected,

the article alluded to him and Mr. Gorham. Did not John

his daughter as he was a cruel Parker know the prosecutor;

parent. and the Russian consul attend

Cross-examined. The perform- at the theatre, some years ago,

ances of the boys were not re- and assist and direct in getting

markable, nor the girls either; up a ballet for a public exhibi-

they were good performers, but tion?

the daughter never appeared in Mr. Austin objected.

Judge Thachee. This question is not pertinent to the issue. The
government could not be aware of such inquiry, nor ready to meet
it. It tends likewise to put the Russian consul on trial for facts,
calculated to reflect on him, and to injure him, when he is not on
trial, and cannot be presumed to be ready to defend himself. He
may deny the fact. He may say he was out of the country at the
time this ballet was got up. Now it would be against all principle
that he, confiding his interest in the inquiry, should not have notice
of the accusation, and be prepared to encounter it. But this is not
the time nor place for such inquiry, and the court will not admit it.

From the course of the defense marked out by the opening coun-
sel, it seems to the Court that it is proposed by the defendant to
offer the truth in evidence as a justification of the libellous matter.
Suppose that all you say of the Russian consul is true, it does not
make him a "public man." He did no more than any citizen might
do, and he is not here seeking redress for a wound inflicted on his
consular character. The defendant has a right to argue on the
whole piece, that it was merely a criticism on an unfortunate
writer, and if the jury consider it no more than legitimate satire
and criticism, it will be a good answer to the charge.

THE SPEECHES TO THE JURY.

Mr. Gorham, Gentlemen of the Jury : We regret that the
testimony, which had been thought material by the defend-
ant 's counsel, should have been excluded by the court. It was

JOSEPH T. BUCKINGHAM. 5)5

the intention to have shown, by undoubted testimony, that
the prosecutor had subjected himself to animadversion in the
newspapers as an author and a critic, assuming the office
of a dictator in matters of taste, and endeavoring to direct
our public amusements, and give a tone to public sentiment;
that, as such, he had no right to complain, if he were dealt
with as all others are who follow the same course. This
prosecution, was not commenced in order to preserve the
public peace, nor was it necessary, to that end, that is should
have been brought forward at the present time. It was in-
stigated by anger and resentment on the part of the prose-
cutor. Else why had the attorney for the commonwealth and
eight or ten successive grand juries, whose duty it is to
prosecute all breaches of the peace, been silent on the subject
for more than three years? It is evident, that the temper
of the complainant had incited him to procure the present
indictment, and he was now the aggressor, and committing
an act which tended to a breach of the peace. We deny
that the first piece alleged to be libellous had any allusion
to the Russian Consul. It was a piece of criticism, general
in its nature and object, and it had been proved that there
was another individual in Boston at the time of its publi-
cation, to whom the censure would equally apply. Ad-
mitting that it did allude to him, the defendant ought not
to suffer for its publication; for he was much absent at the
time, and knew but little of what was inserted in the paper,
owing to sickness and death in his family. The very paper
which contained the alleged libel, contained notice of the
death of one of his children, and an apology for his neglect
of editorial duties.

As to the second piece, it was no more a libel than was
the piece called My Pocket Book on Sir John Carr, which
Lord Ellenborough had scouted out of court. It may be ad-
mitted that it was coarse and rude; but it could not injure
the reputation of any man ; it had very little wit in, it ; and
I should rather be the subject than the author of it. If it
alluded to Mr. Eustaphieve at all, it alluded to him as a

516 XIY. AMERICAN STATE TRIALS.

writer. He had written some works, which had been severely
handled by the Edinburgh Reviewers, and he had replied,
in a strain which indicated that he was not pleased with their
criticisms. This was what was meant by ''his dislike to Cale-
donian literature — and why." His uneasiness under the
lash they had inflicted was pretty evident, and this was all
that was intended by "dancing to the Scotch fiddle." The
latest of pieces complained of appeared more than two years
ago; a circumstance which precluded the prosecutor from
-claiming any redress in a civil action.

Mr. Austin. Gentlemen : The defendant being proved to be
the editor and proprietor of the Galaxy, it is of no conse-
quence, whether he was in the office at the time of the publi-
cation or not. He was responsible for all that appeared
in the paper. It is for the jury to consider whether the
articles complained of were libellous ; and that the first one
was so, no one doubted. It has been shown that it could
apply to no one else, but the Russian Consul, and it was cal-
culated to wound him in the tenderest point, by holding him
up to the indignation of the public as a cruel and heartless
father. The piece complained of in the second count is also
grossly libellous; and the writer could have had no other
object than to expose Mr. Eustaphieve to public scorn and
ridicule.

January 10.

Judge Thacher: Gentlemen of the Jury, The defendant,
Mr. Buckingham, is charged with the offense of having com-
posed, printed, and published two libels against Alexis Eus-
taphieve, the Consul of his Russian Majesty residing in this
city, with the malicious intent to defame and villify him, and
bring him into contempt, hatred, and ridicule. The first
relates to his conduct as a parent ; the second, to his life and
opinions. The third count has been withdrawn since the
commencement of this trial, and must be wholly disregarded
by you. In legal contemplation the two counts are several
indictments. The defendant may be convicted on one, and
acquitted on the other; or you may render a general verdict

JOSEPH T. BUCKINGHAM. 5 1 7

on both, as you shall finally consider yourselves justified by
the law and the evidence. It has not been controverted, that
the pieces complained of are set forth in the indictment cor-
rectly.

You must be satisfied before you can find a verdict against
the defendant, that the pieces which are complained of were
published by him — that they relate to the Eussian Consul and
are libels upon him — and that they were published by the
defendant with the malicious intent to defame the Russian
Consul, and to bring him into hatred, contempt, and ridicule.

On you devolves the duty "to decide at your discretion,
by a general verdict, both the fact and the law involved in
this issue." But in committing the case to you, it belongs
to me to expound to you, with candor and simplicity, the
principles of law which are applicable to it, with the view of
assisting you in the performance of your duty, and to enable
you to come with confidence to a correct result.

Trials of this kind are rare, and, perhaps, from that cause
they excite a degree of interest which is out of proportion to
the offense. But if from any cause you are conscious of any
undue interest, or feel any prejudice^ you will suffer me to
caution you to dismiss them from your bosom, as the enemies
of good judgment. Though this case, as most other criminal
prosecutions, might have had its origin in the complaint of
an individual; yet you are not trying the complaint of an
individual, but a presentment of the grand inquest on their
oaths, who are bound by law "diligently to inquire and
truly to present all crimes and offenses committed within the
body of this country." This is not therefore a vindictive
suit by the Russian consul, to recover damages for wounds
inflicted on his character and feelings. So far as these
are concerned, the remedy is by a civil process in another
court, and whatever may be the event of this prosecution, the
personal injury and the civil redress will in no degree be
affected.

The questions, what is a libel, and why it is deemed a public
wrong, are answered in a clear and satisfactory manner, by

518 XIV. AMERICAN STATE TRIALS.

our supreme judicial court in the case of the Commonwealth
v. Clapp, (4 Mass. 163.) The opinion in that case was pro-
nounced by the late Chief Justice Parsons, who was a most
humane judge of criminal law, and always gave to a party
on trial the full benefit of his learning and talents, to screen
him from an illegal conviction.

"A libel is a malicious publication, expressed either in. printing
or writing, or by signs and pictures, tending either to blacken the
memory of the dead, or the reputation of one who is alive, and
expose him to public hatred, contempt or ridicule." "The cause why
libellous publications are offenses against the state, is their direct
tendency to a breach of the public peace, by provoking the parties
injured, and their friends and families to acts of revenge, which
it would not be easy to restrain, were offenses of this kind not
severely punished."

A citizen would be very apt to consider himself justified
in revenging himself on one who had maliciously defamed
him, and rendered him an object of hatred, contempt or
ridicule, if the society to which he belonged, did not punish
the offender. Our law is not defective in this particular, and
all pretense for private violence is removed. ' ' A man appeal-
ing to the public justice for redress of an injury, must think
himself acquitted in his reputation, when he sees that the
state resents as an insult to itself a wrong done to his person,
property or character." Private revenge for injuries re-
ceived is a violation of that first principle of society, by
which each member agrees to give up a portion of his natural
rights, to secure the more perfect enjoyment of the re-
mainder. No man under the protection of the law, is to be
the avenger of his own wrongs.

It requires no arguments to prove, that a libellous publi-
cation is not less likely to produce violations of the peace, be-
cause it is founded in truth. And therefore, however it is,
that if a man publishes an injurious truth of another, the
truth of the publication will be a justification in a civil
action for damages; yet such defense will not avail in an in-
dictment for a libel, except in the case, which arises from the
genius of our constitution, "of publications respecting candi-

JOSEPH T. BUCKINGHAM. 519

dates for a public office, conferred by the election of the
people, and of persons holding a public elective office;" the
people having an interest in the publication of truths re-
lating to their public servants. The exception extends also
to the case "of complaints to the legislature for the removal
of an unworthy officer," and to some other cases, where the
purpose being first proved to be justifiable, that is, done with
good motives and for justifiable ends, a defendant might
be permitted to give in evidence the truth of the words. I
think that this exception secures to the public all necessary
intelligence, upon all proper occasions, and would protect
printers in publishing facts relating to individuals, in which
the community has an interest, in many of those cases, to
which the honorable and learned counsel for the defendant
alluded in his closing arguments, where such publications
should not carry on their front the palpable intention to de-
fame.

Considering the interest which seems to be attached to this
subject, you will permit me to detain you for a moment
longer, on the law of libel, which I consider has been estab-
lished in this commonwealth on principles of the highest
wisdom. The great struggle in England forty years ago, on
this subject, arose from the judges having arrogated to them-
selves the right exclusively to decide in all cases the question,
whether a publication complained of were a libel or not, and
from their directing the jury to pronounce a general verdict
of guilty or not guilty, as they should be satisfied, that the
defendant did or did not publish the paper, and as it was or
was not truly set forth. The British nation justly considered,
this, as stripping the subject of his defense of a trial by
jury, and the struggle resulted in the act of 32 Geo. III. c. 60,
which declared:

"That on every trial for a libel, the jury sworn to try the issue,
might give a general verdict of guilty or not guilty, upon the whole
matter put in issue, and should not be required or directed by
the court or judge before whom the trial was had, to find the de-
fendant guilty, . merely on the proof of the publication by such de-
fendant of the paper charged to be a libel, and of the sense ascribed
to the same in the indictment."

520 XIV. AMERICAN STATE TRIALS.

During the debates on this bill in the House of Lords, the
twelve judges, upon a question put to them, declared, "that
the truth or falsehood of the written papers are not material
to be left to the jury upon the trial of an indictment for a
libel; and that it made no difference, whether the epithet
'false' were or were not used in it." The greatest lawyers,
statesmen and orators of the English nation took a, part in
this interesting discussion. But they were content to restore
to juries their right of deciding both on the law and. the fact,
as it undoubtedly existed at the common law. No one con-
tended that, on an indictment for a libel, the truth of the
matter should be a defense to the charge ; and we do not find
in the statute itself, that there is any provision on this point.
And yet, gentlemen, the great Lord Erskine, the champion
of English liberty, of the rights of the press, and of the trial
by jury, and who has just closed his mortal career, observed,
in the house of lords, upon a solemn occasion, so late as the
year 1808, "that the law of libel had been brought as near
perfection as was perhaps possible; though in earlier life,
he did not think that the practice of the courts was right in
some points, yet he had lived to see it remedied. " (30 Howell,
State Trials, 1344.)

In this commonwealth the citizens enjoy, in cases of this de-
scription, every privilege, which is secured to the subjects in
Great Britain, together with the further right, that the truth
shall avail as a justifiable defense in certain cases, arising
under our peculiar political institutions, to which I have be-
fore alluded. The law on this subject was settled, on great
consideration, in the case against William Clapp, by the
supreme judicial court, to which an appeal lies in all cases
from this court, and which, by its prerogative, corrects the
errors of all other judicial tribunals of the commonwealth.
The decisions of that court are reported by a public officer,
under the authority of the legislature, as the most authentic
expositions of the law, for the purpose of diffusing among
the citizens, information on subjects of the greatest interest.
The solemn decisions of that court are considered as binding
on the several judges, at their nisi prius terms, and on all

JOSEPH T. BUCKINGHAM. 521

inferior tribunals. I freely avow, that I consider them as
binding on me generally, upon the principle, that what is
determined in that court upon solemn argument, establishes
the law, and is a precedent for future cases in that, and in
all inferior tribunals. Eadem lex Romce, eadem Capuce. It
is the right of the citizens to be governed by certain laws.
Now what certainty would there be in the laws, if a different
rule of interpretation on any subject should be adopted in
this court from what prevails in the supreme judicial court
on the same subject ? It would at once take from the minds
of the citizens all confidence in the administration of justice
here.

The law, as it is laid down by the supreme court in Clapp's
case, is not in violation of the constitution. That instrument
is to be construed so as that its various provisions may har-
monize with each other. While it declares, "that the liberty
of the press is essential to the security of freedom in a state,
and ought not therefore to be restrained in this common-
wealth," it guarantees to each citizen "life, liberty, property
and character." It declares, "that it is essential to the
preservation of these, that there be an impartial interpreta-
tion of the laws and administration of justice;" and it lays
down, as the first principle of our government, ' ' that all shall
be governed by certain laws for the common good." How
long would "life, liberty, property and character" be safe,
and what would be their value, if the press were not under
the restraints of law ? The liberty of the press is not confined
to publishing truth. It is as large as human liberty is in any
other respect. We are free to act, nor has it yet been thought
an infringement of civil liberty, that we are answerable for
our actions and liable to punishments for violations of the
law. So the liberty of the press consists in the being free to
publish anything, true or false, without previous restraint,
subject only to the control of the law for the abuses of that
liberty.

Among the Romans, it was at one period a part of their
polity, to appoint a censor of the public manners. Among
other high duties of this officer, he had the right to inspect

522 XIV. AMERICAN STATE TRIALS.

the public and private character of the citizens, and might
degrade even a senator from his rank, if he rendered himself
an object of public odium or contempt. Modern governments
have not seen fit to imitate this institution. In our common-
wealth no individual may erect himself into a sort of domestic
tribunal, to try and condemn those, who incur his disappro-
bation, by any singularity of manners, peculiarity of senti-
ment or character, or even by any defect in morals. Nor
may he with impunity presume to hold up his fellow-citizens
to public odium, contempt or ridicule.

These principles of law, handed down from antiquity and
qualified by our own wise institutions, have, I trust, governed
me in deciding some very important questions, which have
arisen in the course of this trial; and it will not be safe for
you, gentlemen, to depart from them, when you retire to make
up your final opinion, let them operate as they may, either
for the government or for the defendant. Hard would be
the task of jurors, and uncertain would be the tenure of all
our rights, if the decision of cases should depend on the will
of jurors, not guided by the known and established rules of
law.

From this general survey of the law, you will return with
me, gentlemen, to the present case, of which I will endeavor
to take a summary view. And first, are you satisfied, from
the evidence, that the defendant published the pieces which
are complained of as libellous? Although the defendant is
charged with having "composed, printed and published," it
will be sufficient to authorize your verdict, if you believe the
fact of publication merely. To this point you have the testi-
mony of Jefferson Clark, who says, that he has been engaged
in the printing establishment of the defendant from the year
1817 to this time, with the exception of a short absence in the
year 1822; that the defendant is the publisher and editor of
the New England Galaxy; that he usually corrects the press;
that he, the witness, sometimes, but very rarely, and only in
the absence of the defendant, performs that duty. When
shown the number of the Galaxy of September 1, 1820, which
contains the first article complained of, he said that he be-

JOSEPH T. BUCKINGHAM. 523

lieved it to be a paper, which was printed in the office of the
defendant, because it resembled the newspaper printed by
him ; but he would not undertake to swear to the identity of
the publication. He says, that at and about that time, the
defendant was detained at home, and was a good deal absent
from the office, being with his family in the country, who
were at that time visited with a domestic calamity. But he
was in and out of the office, and he left no substitute to cor-
rect the proof. Now as the paper was printed in the office
of the defendant, by his servants, and for his profit, and as
he has never disavowed it, he is in law answerable for the
contents.

The paper which contains the alleged libel, was purchased
at the defendant's office in September, 1820, by Ezekiel
Morse, the servant of the Russian consul, and carried to him
and marked at the time. This fact alone is evidence of pub-
lication, it being a reasonable and well known principle of
law, that if a man sells a libel by his servant, it is considered
as evidence of a publication by him, unless he show that the
servant acted without or against his authority. Books sold
in any shop or warehouse, though not immediately by the
master, but by his servant, or one entrusted with the sale of
such books, is prima facie evidence, and conclusive to all in-
tent and purpose if not contradicted. Lord C. J. Mansfield,
in Trial of John Almon, (20 Howell State Trials, 842.)

Jefferson Clark likewise testifies, that he believes the num-
ber of the New England Galaxy of the date of November 30,
1821, which contains the second alleged libel, was published
by the defendant, being similar to the newspaper printed by
him at that time. Nothing is shown from which you may
infer, that this paper is not a genuine number of the Galaxy
which was issued on that day.

Secondly, are these pieces intended to reflect on the Russian
consul, and are they libels ? As to the second piece, both the
counsel for the defendant admit that it was intended to apply
to that gentleman, and what is so admitted requires no fur-
ther proof. The first piece of evidence' in relation to the

524 XIV. AMERICAN STATE TRIALS.

application of the piece of September 1, 1820, is contained in
the number of the " Euterpeiad, " a paper which was pub-
lished on the 26th of August preceding. In that is contained
an article upon "Miss Eustaphieve, " a daughter of the
Russian consul, relative to her extraordinary talents as a
musical performer, and in reference to which article it would
seem, from a postscript, this piece was written. It appears
from all the witnesses, that the Russian consul had at that
time a daughter in her twelfth year only, who was distin-
guished as a prodigy of musical talent, particularly for her
power of execution on the piano-forte. Mr. John S. Ellery
testified, that on reading that piece at the time, he instantly
knew that it referred to the Russian consul and his daughter,
and that being his friend, and having taken an interest in his
family from their first arrival in this country, about fourteen
years ago, he immediately carried the paper to him, and
that it appeared deeply to wound his feelings. Mr. Bryant P.
Tilden testified, that he immediately knew that the piece al-
luded to the Russian consul ; that there were no other father
and daughter in the city at that time, to whom it could refer ;
and that it was a subject of great conversation in the insur-
ance offices here, which you know, gentlemen, are places of
great resort, where all news is eagerly detailed, and where an
article is perhaps not the less likely to attract attention for
possessing something of a domestic character. Mr. Tilden,
speaking of the talents of the young lady, says, that the late
Dr. George K. Jackson, a most eminent professor of music in
this city, would sit by her for hours, hearing her performance
in admiration of her powers of execution. Similar testimony
was given by Mr. William Coffin. He believed that the piece
could refer to no one but the Russian consul, from his avowed
fondness for music, and from the distinguished talents of his
daughter, which was a subject of much conversation at that
time among musicians and amateurs.

It was attempted, in the defense, to show, that the publi-
cation referred to a Mr. Lewis, who, with his children, two
boys and a little girl, were in this city a few years since.
Some witnesses have testified, that this gentleman had the

JOSEPH T. BUCKINGHAM. 525

reputation of treating his children with severity, and it was
owing to this, that the boys had attained to considerable ex-
cellence on the piano-forte. If this were true, gentlemen, it
would be nothing surprising, as we know, that it is almost
impossible to secure the attention of children, and that they
should attain to great accuracy in any literary or scientific
pursuit without perpetual watchfulness, and the occasional
application of severity. I have known some rare exceptions
to this rule, but the celebrated Dr. Johnson acknowledged,
that he was indebted for his accuracy in the languages to
the severity of his masters. Mr. John Dodd, who was ex-
amined as a witness for the defendant, testified that the
daughter of Mr. Lewis never appeared in public; that the
performances of the boys were remarkable for children; but
that they were not equal to Christian's, or what would be
deemed rare or excellent in a professor. He further testified
that Mr. Lewis, with his family, left Boston sometime in the
year 1820, and that on reading the piece he did not think it
could refer to him and his children. Messrs. Ellery, Tilden
and Dodd all agree in the fact, that the Russian consul is a
tender father and passionately fond of his daughter, as
well as proud of her accomplishments. And hence the elo-
quent counsel for the defendant raise an argument, that this
piece could not be intended to refer to him. But, gentlemen,
if from the evidence, you believe that the piece was intended
to refer to him and his daughter, then this fact will tend to
show the disposition of its author, and you may fairly infer,
that he meant to wound Mr. Eustaphieve in the most sus-
ceptible point. For if he is an indulgent father, it must
wound him the more deeply, to be accused of the want of
natural affection. But it belongs to you to weigh all the
evidence, and if you are not satisfied, that the piece was
meant to reflect on that gentleman, the defendant will be en-
titled to an acquittal.

Are the pieces complained of libels? The first is averred
to relate to the conduct of the Eussian consul as a parent
towards his daughter. It says, in substance, that the musical
superiority of this young lady was effected by the incessant

526 XIY. AMERICAN STATE TRIALS.

drilling of a cruel and heartless master; — that her astonish-
ing rapidity of fingering produced no effect on the feelings,
except pity for the haggard cheeks and feeble frame of the
lifeless automaton; that the parent had subjected his
daughter to daily drudgery by threats, promises and flattery,
without alleviating her task by a ray of kindness or affection,
and that all the future prospects of the child were sacrificed
at the altar of ambition. He concludes with invoking the in-
dignation and contempt of an enlightened community upon
the tyrant. This paper is in legal contemplation a libel, be-'
cause it exhibits the party intended as a heartless monster,
devoid of natural affection, and sacrificing his daughter to
gratify a senseless ambition; thus containing that sort of
imputation, which is calculated to vilify and bring a man
into hatred and contempt. Now if you believe, that the de-
fendant meant in this way to hold up the Eussian consul to
the view of the public, with the malicious intent to bring upon
him the hatred of the community, you will be warranted in
pronouncing a verdict of guilty.

You are to judge of the motive, for there is no criminality
without intention. Now where a party has published a paper
of this character of another, he is answerable for its legal
effect; "a criminal intent from doing a thing in itself crim-
inal, without a lawful excuse, being an inference at law,"
unless he can negative the malicious motive. You will there-
fore next inquire, whether the defendant has succeeded in
this part of his defense. And here you will recollect and
weigh the argument of the eloquent counsel for the defend-
ant on this point. They have read the whole piece from
which the libellous matter was extracted, and they deny that
it refers to any individual. They say that according to all
the rules of fair criticism, it must be interpreted to relate
to a school of musicians and performers, and not to the
Russian consul ; and that it is plain, that the object of the
writer was to instruct, with a view to correct and improve
the public taste.

Was the general object of the writer innocent and laud-
able? If perceiving that undue praise had been bestowed on

JOSEPH T. BUCKINGHAM. 527

what he deemed an improper object ; and that it was likely to
introduce a bad taste into the divine art of music ; or that a
sentiment prevailed, which was calculated to injure the gen-
eral education of young ladies, by taking off their attention
from the useful branches of knowledge, and fixing them on
the ornamental only, thus sacrificing mind to accomplishment ;
if you are satisfied, that the general design of the writer
was to discuss merely these subjects of general interest, thus
you may fairly infer that his object was innocent and laud-
able. But if in prosecuting this his lawful object, he has
maliciously strayed from it, and indulged himself in defam-
ing the Russian consul as a parent, then the general design
of the piece will not excuse the wanton attack on the feelings
and character of that gentleman.

As to the second piece complained of, I agree with the
counsel for the defendant, that it is a rude, uncouth and in-
decorous piece, of which I should prefer to be the subject
rather than the author. "We look in vain to find in it any
classical wit, to disguise the feelings of the author towards the
individual whom he meant to satirize. The whole piece has
been read to you and you are to weigh the argument which
defendant's counsel have made, and in which they insist that
it is merely harmless wit, devoid of any malevolent design.
I think, in passing judgment on it, you may fairly consider,
whether you would feel wounded at finding yourselves ele-
vated into the columns of a newspaper, to be gazed at by the
passengers, and designated in the style, in which it seemed
good to the ingenious author of this piece, to display the life
and opinions of Mr. Eustaphieve. You are not to resort to
strained rules of criticism, or to seek for the meaning of
vulgar epithets, as was done with great ingenuity and effect
by one of defendant's counsel, in the almost to us unknown
science of heraldry. But you are to exercise your own com-
mon sense, not imagining that, because you are in a court
of justice, you are to see with other eyes, or hear with other
ears, or to judge with other judgment, than if you were by
your own fire-side.

In this piece, the author seems to delight in the figure of a

528 XIV. AMERICAN STATE TRIALS.

Bear, and to attach that appellation to Mr. Eustaphieve. He
speaks of "the sign of the Bear and Fiddle" — he speaks of
the Russian consul "as sucking a Bear," like Romulus and
Remus. He speaks of "the dancing Bear" — "the polar
Bear" — "the rugged Russian Bear," and "of a set-to be-
tween a big Bear and a Dandy." He also alludes to his em-
ployments, as being fond of music, of fishing, of writing in
the newspapers, — and there are some expressions of double
meaning, which, if taken in their vulgar signification, are
highly offensive. Now, gentlemen, weigh this in the judg-
ment of common sense and common charity. If, on a deliber-
ate view of it, you believe it was designed as a piece of criti-
cism on an unfortunate author, as mere and legitimate satire
with a view to correct the public taste, and to prevent the
writer from indulging his vein for scribbling, it was harmless.
But if, on the contrary, you believe, that it was meant to rep-
resent the Russian consul as an object of contempt and ridi-
cule, to wound his feelings, and to sport with him in a land
of strangers, — then the laws of hospitality have been violated,
as well as the laws of the land. For, ' ' if any man deliberately
and maliciously publishes anything in writing concerning an-
other, which renders him ridiculous, or tends to hinder man-
kind from associating, or having intercourse with him," it is
libel.

THE VERDICT AND SENTENCE.

The Jury returned a verdict of guilty on the second count,
and not guilty on the first.

Mr. Gorham addressed the court on the nature and extent
of the punishment such an offense ought to receive; he con-
tended that it did not fall within the several classes of libels,
which it had been found necessary to punish with severity,
namely, that it was not against government, and of a seditious
nature; nor against a magistrate, or one high in office,
whereby the public as well as the individual might be injured ;
nor one by which the peace and happiness of the domestic
circle was disturbed; but only satire, carried a little beyond
prescribed rules. He also contended, that as the alleged libel

JOSEPH T. BUCKINGHAM. 529

was drawn from an old publication, and as time went to the
merits of a libel, it certainly ought to go in mitigation of
punishment. Much reliance was placed on the decision of the
king's bench, on the application of Sir Hudson Lowe for an
information to be granted against Mr. O'Meara, the author
of the account of Napoleon Bonaparte's exile at St. Helena;
which was refused because he had allowed a fifth edition of
the work to appear, and more than six months to elapse
before he commenced his complaint.

Judge Thacher said that there was a great difference
between an application to the king's bench for an information
in such a case, and an indictment found by a grand jury.
That court could not, very properly, exercise their extraor-
dinary jurisdiction under such circumstances, but would
leave the party to the ordinary redress.

The defendant was sentenced to pay a fine of one hundred
dollars, and to give sureties for his good behavior for one
year, himself in five hundred dollars, and two sureties each
in two hundred and fifty dollars.

From this judgment he appealed to the supreme judicial court.
At the trial of the appeal before Judge Wilde, he allowed the de-
fendant to prove, that Mr. Eustaphieve assisted in getting up a
ballet at the theatre. He confirmed the law generally as laid down in
the municipal court. But the jury did not agree in finding a verdict.

THE SECOND TRIAL OF JOSEPH T. BUCK-
INGHAM, FOR LIBEL, BOSTON,
MASSACHUSETTS, 1824.

THE NARRATIVE.

As the jury had found that the charge of being a cruel
father made by the editor of the New England Galaxy did not
refer to the Russian Consul and as the second libel was a silly
and senseless attack which could hurt nobody but its author,
Mr. Eustaphieve, after the trial, sent two of his friends to
the editor to tell him that he would proceed no further
against him, if he would print an apology which he had drawn
up. Otherwise a new indictment would be asked of the
grand jury on the third article which was a most grievous
libel, for it not only held him up to contempt and ridicule
as a man, but was calculated to destroy his standing as a
public official and to deprive him of his office as Consul of
the Russian Empire.

But editor Buckingham refused to print the apology and
a second and good indictment was returned by the Grand
Jury founded on the story in the third article describing the
disturbance at the ball, (see ante page 505.)

The editor pleaded that the publication was not malicious,
as he had simply printed the story as it was sent to his news-
paper by a correspondent in whose word he had the utmost
confidence. And he proposed to prove by witnesses just
what did take place at the ball in question, not as a justi-
fication— for his lawyers had to admit that by the law of
Massachusetts the truth of the words was no justification in
a criminal prosecution for libel — but to rebut the presump-
tion of malice.

The trial Judge ruled that the truth of the libel was ad-
missible to rebut malice in the cases only where the publi-

(530)

JOSEPH T. BUCKINGHAM. 53 f

cation was made in the public interest. Here the public had
no interest in what was taking place at a voluntary assembly
of persons for the amusement of dancing.

Mr. Buckingham was found guilty by the jury and was
sentenced by the judge to imprisonment in jail for thirty
days and to pay the cost of the prosecution.

THE TEIAL.1

In the Municipal Court, Boston, Massachusetts, March,
1824.

Hon. Peter O. Thacher,2 Judge.

March 8.

This was a new indictment on the publication which was
contained in the third count of the indictment heretofore
tried (see ante p. 505), but which third count failed then on
account of a mistake of omission.

The defendant pleaded not guilty.

The indictment consisted of two counts, in both of which the
whole article was recited, with inuendoes and averments in the
usual form. The first count alleged that the defendant, in the
publication complained of, intended maliciously to defame, vilify
and scandalize Alexis Eustaphieve, and hold him up to the contempt
and ridicule of the public. The second alleged, that the defendant
maliciously libelled the said Alexis Eustaphieve, with intent to
destroy his reputation, and thereby deprive him of the emoluments
of his office, as consul of the emperor of all the Russias.

James T. Austin3 for the Commonwealth.
Benjamin Gorham* and Samuel L. Knapp5 for the de-
fendant.

i Wheeler's Criminal Cases, see 1 Am. St. Tr. 108. Thacher's
Criminal Cases, see 2 Am. St. Tr. 858.

2 See 2 Am. St. Tr. 859.

s See 1 Am. St. Tr. 44.

* Gorham, Benjamin (1775-1855). Born Charlestown, Mass. Grad.
Harv. 1796 and admitted to Boston Bar. Representative in Con-
gress 1821-1823, 1831-1833-1835. Died in Boston.

s Knapp, Samuel Lorenzo (1783-1838). Born and died Newbury-
port, Mass. Practiced law and was author of many works of bi-
ography and travels.

532 XIV. AMERICAN STATE TRIALS.

Mr. Austin. The indictment is founded on a certain piece pub-
lished in the New-England Galaxy, which formed the basis of a
third count in an indictment found by the grand jury at a former
term of the court, but which was found to contain an informality,
which excluded it from trial. It has passed again through the
hands of the grand jury, and there is now no fatal deficiency of
technical formality. It has no connection now, however, with the
other counts in that indictment, and is to be tried without any ref-
erence to any of the publications that were the subject of the former
trial. There are three points for the jury to consider. First,
whether the defendant published the piece as set forth in the in-
dictment. Secondly, whether Alexis Eustaphieve, the Russian
consul, was the person to whom the piece was intended to apply.
And thirdly, whether the piece is in itself libellous. On the first
point, it is not necessary to exercise the patience of the court and
.jury, for it is admitted by his counsel that defendant was the editor
and publisher of the New England Galaxy in which the piece was
published on November 7, 1823.

As to the second and third questions it cannot be doubted that
the Russian Consul was the person alluded to as was averred in
the indictment and as to the third question, if you should find that
the piece which I will read to you is a libel, you must pronounce
Mr. Buckingham guilty.

Mr. Oorham. The Consul is not named in the article; he is not
the representative of the Emperor of Russia.

Judge Thachee. The government may prove their averments,
and as they have averred that Mr. Eustaphieve was the Russian
consul residing in Boston, duly accredited by the government of the
United States, and that he was present at an exhibition ball, given
by Messrs. Parks and Labasse, at Concert Hall, it was undoubtedly
competent and material for the government to prove those facts.

Mr. Austin. Then after reading the article I will make that
proof. The libelous article, gentlemen, is as follows:

"RECORD OF FASHION. The pupils of Messrs. Parks and La-
basse gave a splendid exhibition of dancing at Concert Hall on
Tuesday evening. The elegance of attitude and the gracefulness
and ease of their movements afforded a proof of the science, skill
and taste of their instructors and elicited the approbation of a
crowded and fashionable concourse of spectators.

"A communication respecting this exhibition and ball has been
received, the chief object of which is to give the details of an un-
pleasant and disgraceful disturbance which occurred in the course
of the evening. The history would not do much honor to the
parties concerned and we decline its publication at present, though
it is but just to the character of Mr. Parks to say that we have not
heard that any blame was attached to his conduct on the occasion,
but that on the contrary he kept as much aloof as possible from
the scene of anger and confusion. 'The rugged Russian Bear' it is

JOSEPH T. BUCKINGHAM.

533

said was a conspicuous actor in the farce, which had well-nigh
turned out to be a tragi-comedy in consequence of his attempting
to jump with his cocked hat and all down the throat of one of his
opponents. We think with our correspondent that it is best at the
present moment to give no opinion on the merits of the controversy
but leave it to the decision and final adjudication of him who while
acting as the representative of the greatest monarch of the world —
the magnanimous Alexander the autocrat of all the Russias, the
honorary member of the Massachusetts Peace Society, the grand
pacificator of Europe — does not deem it a derogation from the dig-
nity of his high vocation, to become a party in the quarrels of
dancing masters and fiddlers."

I put in evidence the exequatur of Mr. Eustaphieve dated
September 7, 1809, signed by President Madison. And I will
now call my witness.

Johnson S. Ellery. Alexis
Eustaphieve has been the ac-
credited consul of the Russian
Empire residing in Boston for
fourteen years. Myself and Mr.
Eustaphieve were at the ball at
Concert Hall on Tuesday evening
preceding 7th November. He
behaved with the utmost pro-
priety; there was no other per-
son at the ball to whom the re-
marks could apply. There was
a disturbance during the ball,
Mr. Labasse being ignorant of
the English language requested
Mr. Eustaphieve to interpret for
him on which account Mr. Eu-
staphieve interested himself at
the time in his behalf and he
Was not otherwise concerned in
the affair than as a friend and
interpreter of Mr. Labasse. De-
fendant in a conversation with
me on 13th January last, ac-
knowledged that the consul was
the person for whom the appli-

cation was intended.

Cross-examined. I cannot rec-
ollect the precise words used by
defendant but am positive that
the personal application was ad-
mitted. I called on defendant
at his office on the day aforesaid
intending to act as a peace-
maker and endeavor if possible
to effect a reconciliation of all
differences between the consul
and defendant. Mr. Coolidge
went with me. I told defendant
the consul was desirous of stop-
ping all farther proceedings and
I thought he ought to meet these
pacific overtures with a corre-
spondent disposition and mani-
fest his good feelings by publish-
ing some kind of an apology to
sooth the wounded feelings of
the consul; that I had written
an apology which I showed de-
fendant and thought he ought
to publish it. This is a copy of
the paper;

"In justice to ourselves we cannot but express our sincere regret
that any thing should have appeared in the Galaxy to wound the
feelings, or reflect on the character of Mr. Eustaphieve, a gentle-
man for whom we have the highest respect, and whose conduct,
both private and public, we believe to be irreproachable. Inad-

534 XIV. AMERICAN STATE TRIALS.

vertency, absence from home, and the abuse of our confidence by
correspondents, with whose motives we were not acquainted, must
be our apology. "We wish to be understood as including within the
above explanation the article dated November 7, 1823, charging the
consul with undignified deportment at the ball at Concert-Hall,
as, on subsequent information (not having been present ourselves)
we are assured the statement is altogether unfounded."

Mr. Ellery. Defendant de- the conduct of the consul and
clined publishing this apology others of equal respectability
but said he would publish some- and veracity maintaining the
thing similar in substance but contrary, it was not for him (de-
in language of his own. He fendant) to decide or to recon-
wrote a few lines which he ex- cile the contradiction,
pressed a willingness to publish; The Defendant. Did I not as-
I thought them not sufficient; sign to you as a reason for re-
told him they would make the fusing to publish the piece you
matter worse and be adding in- presented, that if published it
suit to injury. As nearly as I would amount to a declaration
recollect of what defendant of my disbelief in the represent-
wrote, it was that there were ations of men of veracity, or
contradictory accounts of the that in other words, it would be
transactions at Concert Hall on charging them directly with
the evening of the exhibition, falsehood? Yes, that was the
some gentlemen declaring that reason you gave for the refusal,
there was nothing improper in

THE DEFENSE.

Mr. Knapp. We contend that the piece was not in its nature,
libelous, and if it were so it was not a libel on the consul. The
quotation "the rugged Russian bear" was no more a designation of
him than it was of any other Russian; that it was no more libelous
to make use of it in the manner in which defendant used it than
the terms Yankee, John Bull or Nic Frog when applied to one of
our own citizens, an Englishman or a Frenchman. The Russian
Consul could not be identified with the description in the paper.
The piece spoke of the representative of the autocrat for all the
Russias. Mr. Eustaphieve was not such a representative. He was
a consul, a mere commercial agent. If the description answered to
that of any person it was the Russian minister, Baron Tieul, and
it was he if any that was libeled. But there was no libel. The
piece did not describe Mr. Eustaphieve, and the person whom it
did describe, in part, was not present. The piece could not be
considered a libel. It was an account of an occurrence which took
place at a public ball, given at a well-known licensed tavern. An
exhibition of dancing had been proposed; the attention of the public
had been invited to it by advertisements in the newspapers; tickets
were sold to admit the bearer; and the exhibition was as fair a
subject of remark and criticism as the entertainments at the

JOSEPH T. BUCKINGHAM. 535

theatre. An unpleasant and disgraceful disturbance or quarrel took
place at this exhibition; and if it were libellous to give the par-
ticulars of the quarrel, and to comment thereon, there is no reason
why it was not libellous to publish an account of a riot in the
street. If this were a libel, hundreds of libels were published every
week, and no editor of a newspaper could escape from a prosecu-
tion. This piece wanted the principal ingredient to constitute a
libel: There was no malice in it. Mr. Ellery, the witness for the
prosecution, had stated on the stand, that the defendant had dis-
claimed all malice and personal animosity, and had declared his
willingness to publish any thing that he could in honor publish,
to soothe the lacerated feelings of the consul. He did not, it is
true, publish the apology presented to him by Mr. Ellery. He did
right in refusing to publish it. Had he done so, he would have met,
and justly met, the contempt of the public. I should have despised
him, and so would every man of high-minded and honorable feel-
ing. He acted as every prudent and honest man would act, and
did not meanly endeavor to get out of a small difficulty, by getting
into a worse one. The facts which he stated in the paper were
communicated to him by men of respectability and veracity and he
did not choose for the sake of conciliation, however, much he might
desire it, to say that he disbelieved such men. He acted wisely and
properly in refusing to decide which of the parties was guilty of
falsehood. I expect to be able to prove that the Russian consul
took an active part in the disturbance at the exhibition, and that
if he interfered merely as a translator, he did it with so much
earnestness and zeal as led the spectators generally to disbelieve
that he felt a strong interest in the success of one of the parties.
It was not necessary for the defendant to show that the occur-
rences took place, substantially, as he had stated in the paper in
order to rebut the charge of malice, and for that purpose he should
call sundry witnesses.

But first we desire to call a witness who heard the conversation
with Mr. Ellery at his office, in order to show more particularly to
the Court and jury why he refused to publish the apology.

Cornelius Coolidge. The con- that there was no malice on my

versation at defendant's office part, and that I was willing to

was substantially as stated by make any arrangement for the

Mr. Ellery. settlement of the difficulty that

The Defendant. Was it not could be made without exposing

stated by me, to Mr. Ellery, that me to the charge of inconsist-

I was unacquainted with the ency and duplicity? I do not

Russian consul, had never recollect distinctly, but my im-

spoken to him, that I indulged pression is that you discovered

no personal animosity, and was a wish to have all differences ad-

perfectly ready to meet him on justed,

amicable terms? Yes. The Defendant. Mr. Ellery

The Defendant. Did not Mr. stated to me, in your presence,

Ellery appear to be satisfied Mr. Coolidge, that the consul

536 XIV. AMERICAN STATE TRIALS,

had some cause to regret what quence of his interference with
had taken place; he was satis- the judge and county attorney,
fled that I did not indulge any the sentence should be merely
malicious or ungentlemanly feel- nominal, I should think myself
ings towards him, and that I had bound to say so, and to say
been deceived by correspond- every thing else, that could be
ents; he was even sorry that the said with justice in his favor,
jury had convicted me on any but that I thought this a bar-
part of the indictment which gain for payment in advance,
had just been tried; he was will- for what it was by no means
ing to use all his influence with certain the consul could accom-
the court to prevent the sentence plish; for he could have no con-
front extending farther than to trol over the sentence of the
a fine merely nominal, if I would court. I appeal to you, Mr.
publish the apology. In reply, I Coolidge, if this be not the fact,
said to Mr. Ellery that I thought Mr. Coolidge. I can not recol-
it best to let the matter rest till lect, positively, but I believe it
the sentence of the court should to be substantially true.
be known; that if, in conse-

Mr. Knapp. We will now call witnesses to testify as to what oc-
curred at Concert Hall at the exhibition alluded to.

Mr. Austin objected.

Mr. Gorham. We do not wish to introduce the testimony as a jus-
tification. We agree that the law as it now stands does not allow
the defendant to prove the truth of the charges as a justification.
But I wish to introduce this testimony to repel the charge of malice
and then leave it to the jury to decide whether it were a justifica-
tion or not. This right has been recognized in a great number of
decisions both in England and America. The law thus settled
enables the jury to judge of the law as well as the fact. But how
can the jury be judges of facts when all the facts are excluded,
as they would be in this case if the defendant were not permitted
to show that there was a disturbance and that the Russian Consul
took part in it.

Judge Thacher. I do not consider that in deciding this, I shall
interfere with the prerogative of the jury. It is the undoubted
right of the court to decide on what is evidence, and it belongs
to the jury to judge of the effect of evidence after it has been
admitted. The defendant undertakes to justify the publication,
on the ground that the subject-matter was of a public nature, which
was rightfully communicated to the public, and that it called for
such remarks as are contained in the piece. Or rather, he offers
to prove that the publication was for a justifiable purpose and not
malicious, nor with intent to defame, by showing the circumstances
which occurred at the time. Had the attorney for the common-
wealth instituted an inquiry, as to the deportment of the Russian
consul at the exhibition alluded to, which under the averments in
the indictment might have been done, I should have felt bound to
let in all the testimony to this point, which either party could have

JOSEPH T. BUCKINGHAM. 537

brought forward. But no evidence of this kind has been offered
on the part of the government. Nor is it material to the issue
to be tried, what the deportment of that gentleman was upon that
occasion, it being a just and legal presumption, that he did behave
at the time with propriety, and according to his rank and station.

The learned counsel for the defendant do not offer the evidence
of the occurrences of the evening as a justification of the libel, be-
cause they admit that, by the law of this Commonwealth, "the truth
of the libellous words is no justification in a criminal prosecution
for a libel." — But they contend, that this evidence ought to be re-
ceived, to rebut the presumption of malice. But if this evidence
should be received in this case, I think it would go very far to
evade the general rule, "that a defendant cannot justify himself
for publishing a libel, merely by proving the truth of the publica-
tion:" for, under whatever circumstances it is received, the use
which he would make of such evidence to the jury would be, to
justify the publication.

Before a defendant can be admitted to this evidence, he must
prove that the publication was for a justifiable purpose, and not
malicious, nor with intent to defame any man. Clapp's Case, 4
Mass. 163. If a piece complained of appears to be a friendly ad-
monition from a father to his son on his supposed misconduct; or
the testimony of a witness given in a court of justice; or a char-
acter given of a servant; the purpose thus appearing to be justi-
fiable, and not malicious, the party would be entitled to prove the
truth of the matter in justification. Or it may be apparent, that
the public Jias an interest in the publication, on account of the in-
dividual concerned, or of the subject matter. The individual may
be a public officer, or a candidate for a public office, and the piece
may relate to the public service. It may be a petition or remon-
strance to the government, complaining of some stretch of authority,
or of some illegal act, in some one of its branches, as in the famous
petition of the Seven Bishops to James II. remonstrating against
his proclamation, granting unlimited toleration, and suspending all
laws relative to tests, papists and others. 12 State Trials, Howell's
ed. Trial of the Seven Bishops, 183. It may relate to one who has
been convicted in the due course of public justice of an infamous
crime; in which case, society should be put on its guard against
his future machinations. Or it may relate to one charged with an
infamous crime, as murder, burglary, or swindling for instance,
and who may have fled from justice. The public may in such case
be properly called on, by advertisement or otherwise, to assist in
arresting the fugitive, it being for the good of society that of-
fenders should not escape punishment. In such, and in all similar
cases, where a good intent appears on the face of the publication,
evidence of the truth of the fact is admissible, to rebut the charge
of malice.

The decision of the present motion must depend on the question,
whether the public appears to have such an interest in this case
as to warrant the inquiry.

538 XIV. AMERICAN STATE TRIALS.

The subject of the piece is "an unpleasant and disgraceful dis-
turbance," as it is called, which occurred at an exhibition ball
given at Concert-Hall in this city. If it was of a public nature,
and the community had an interest in it, it was because of the
occasion, or of the place. The occasion was a voluntary assemblage
of persons for the amusement of dancing; the place was a licensed
inn. Now I would ask, what interest had the public in the details
of this scene? If any crime was committed there, it may be in-
vestigated like other crimes, committed in any other place. Sup-
pose that an individual had intruded himself improperly into the
company, or had forfeited his right to continue there by any im-
proper conduct: The managers, after requesting him to retire, and
after his refusal, might have turned him out by force, leaving it
to him, if he considered himself injured, to bring his action for
redress. If there was any disorder, which was not the subject of
legal redress or inquiry; if any one, for example, acted in a man-
ner unbecoming his character as a gentleman, or his rank and
standing in society; let such individual suffer the natural conse-
quence of his conduct in the silent loss of reputation. But I do
not know that the public had such an interest in it as that it called
for, or would justify, a libellous piece in a newspaper.

If we should now institute an inquiry into all the circumstances
which occurred at this ball, one manifest inconvenience would arise.
There were present between two and three hundred persons, ladies,
gentlemen, and children. We cannot limit our inquiry to what was
said and done by Mr. Eustaphieve. It will be equally proper and
necessary to inquire, what was said and done by each individual
who was present. Because the scene consists of all that was said
and of all that was done by each at the time. Now, it is said in
the piece, that there was a disgraceful disturbance, the history of
which would not do honor to the parties concerned. Who is to be
disgraced is wholly uncertain. But it is apparent, that the conduct
of two hundred individuals, who are not on trial, who are not
present, who have no notice of the question, and whose reputation
may be affected by the inquiry, would, in this way, and without any
legal necessity, be made a subject of solemn investigation in a court
of justice. I am of opinion, that such inquiry would shock the good
sense even of persons not learned in the law; much more would
it offend the legal discernment of all, who are acquainted with its
humane and wise principles.

"I take it to be clear law," says Bayley, J., in the trial of Sir
Francis Burdett, (4 Barn, and Alderson, 324.) "that if a libel
contain matters imputing to another a crime capable of being
proved" — (and I think the rule equally extends to a libel imputing
to another disgraceful conduct) — "you are not at liberty at the
time of the trial to give evidence of the truth of those imputa-
tions. And this is founded on a wise, wholesome, and merciful rule
of law; for if a party has committed such an offense, he ought to
be brought to trial fairly, and without any prejudice previously
raised in the minds of the public and the jury. The proper course,

JOSEPH T. BUCKINGHAM. 539

therefore, is to institute direct proceedings against him, and not to
try the truth of his guilt or innocence behind his back, in a col-
lateral issue to which he is no party."

The indictment against Sir Francis Burdett was for a seditious
libel, in which he was charged with attempting to excite discontent
among the subjects and soldiers of the King, and to inspire in
them hatred of the government. In the libel, he represented, that
divers subjects of the king, men and women, had been inhumanly
cut down by the dragoons at Manchester. The defendant offered,
at the trial, to prove the truth of the allegation, or, in other words,
the circumstances which occurred at the time. But the evidence
was rejected; and the judges of the King's Bench, although they
differed on other points of law, which had been decided at the trial,
yet they unanimously approved the rejection of this evidence. And
even after the conviction of that defendant, when brought up to
receive judgment, affidavits offered in mitigation of the sentence,
containing proof of the facts charged in the piece, were refused by
the whole court; because they said, if affidavits are admitted on
one side, they must be admitted also on the other, and so the court
would incidentally try individuals for a crime who were not on
trial.

This decision applies, in principle, to the present question. If
we should go into this investigation, we should, in reality, be try-
ing individuals for disgraceful conduct, when those individuals are
not on trial. And as nothing is more clear to my mind, than that
the character of an individual may not be attacked except in a
court of justice, after due notice, and a fair opportunity to defend
himself; and as the public has no interest in the inquiry, the evi-
dence which is now offered on the part of the defendant is re-
jected.

Mr. Gorham, to the Jury. After the course which has been
pursued by the prosecutor, the unprofitableness of contend-
ing when the testimony necessary for a defense is excluded is
apparent. In prosecutions for libels it is necessary to charge
the defendant with malice, in order to constitute a crime.
How is he to meet this charge, unless he be permitted to go
so far into the facts, as to show that the publication was an
account of actual occurrences, and then let the jury judge
whether there were malice in it? If his intention was merely
to give, in the ordinary course of his profession as an editor,
the substance of a quarrel which happened at a public
tavern, his motive was not malicious ; and there is no way of
showing to the jury that it was not malicious, but by show-
ing them that his publication was what it purported to be.

540 XIV. AMERICAN STATE TRIALS.

If the publication, on which the indictment was founded,
were a libel, then it is almost impossible to look into a news-
paper without finding a libel. It is libellous to state that
a quarrel took place between two persons in the street, be-
cause it is derogatory to the character of gentlemen to be
concerned in quarrels. Governor Brooks, who issued a
proclamation, offering a reward for the apprehension of
Michael Powers, suspected of the murder of Kennedy, and
all the printers who published that proclamation were guilty
of libels ; and if Powers could have applied to a grand jury,
before his apprehension, and entered a complaint, they would
have been bound to find a bill of indictment, and the jury
would have been bound to find them guilty, if they were not
permitted to produce facts to show the motive for the procla-
mation; and they could not be permitted to do so, under
the doctrine now set up by the court. It is impossible for
any defendant to get clear of an indictment, without going
into the facts of the case — not to justify the publication, but
to show the intent, and to repel the charge of malice, which
is a necessary ingredient in a libel. However in this case
the publication itself indicated no malice on the part of the
defendant. The paper and the conversation which had been
related as having taken place at the defendant's office, are
all we had to submit to the jury, and I wish you to recollect
the testimony of Mr. Ellery and Mr. Coolridge which ex-
onerates him completely from the charge of malice. It must
appear evident that the prosecution would never have been
renewed had the defendant published an apology which he
could not conscientiously publish. If there were any malice
or vindictiveness exhibted it was not by the defendant. We
confidently expect a verdict of acquittal.

Mr. Austin. It is difficult for a public prosecutor to pur-
sue a course that should at the same time satisfy all the
parties concerned. Those who come with their complaints
are very much disposed to think he does not do enough; and
those whom as an officer of the government, it is his duty to
prosecute very naturally think does too much. I shall there-
fore, without being influenced by either of these parties, en-

JOSEPH T. BUCKINGHAM. 541

deavor to please a third — I shall endeavor to please myself;
shall follow the course which the law, according to my under-
standing and best judgment, points out. The term malice
as used in the indictment does not signify ill-will or a de-
liberate intention to do an injury; but that the libel was
published knowingly — that the defendant knew of the pub-
lication and issued it of his own free will without compulsion.
As to the apology which has been spoken of I would not say
that it was just such a one as I would have advised the de-
fendant to publish; and I submit to the jury whether the
substitute which was offered according to the account given
of it by the witnesses was such as an honorable man would
accept.

THE CHARGE TO THE JURY.

Judge Thacher. You perceive, gentlemen, that this is a
charge against the defendant, for publishing a malicious libel
on the character and conduct of Alexis Eustaphieve, a consul
of his Imperial Eussian Majesty, duly accredited and residing
in this city. The intent alleged is, that it was with design to
injure and vilify him as well in his office, as in his general
good name and estimation, and to have it believed, that he
had, upon a certain occasion, conducted himself in a dis-
graceful manner.

The indictment contains a second count, in which the same
piece is charged to have been published by the defendant,
with the design, that it should be believed, that the Eussian
consul had conducted, upon a certain occasion, in a manner
unworthy of his office and station of consul, by engaging in
brawls and quarrels with persons of low character, and that
it should be believed, that he was unworthy to hold and sus-
tain that office and station. You are constituted in this case,
the judges, both of the law and the fact.

If the piece complained of should not in your estimation
be a libel; if the defendant did not publish it; or if it does
not relate to the Eussian consul, the defendant must be ac-
quitted : and although you should be satisfied of these several
facts, yet, as the essence of the crime consists in malice, if you

542 XIV. AMERICAN STATE TRIALS.

should find that the act of the defendant was free from this
quality, he must be acquitted.

But it is not necessary that you should be satisfied that the
piece was published with all the evil motives which are al-
leged in the indictment. If you should believe that the libel
was designed to vilify the Eussian consul as an individual
only, and to bring him into contempt and hatred, you will
find a verdict against the defendant on the first count only.
But if you should believe that it was published with the ma-
licious design to injure the Eussian consul in his office also,
and to cause it to be believed that he was unworthy to retain
it, then it will be your duty to find a general verdict.

In this as in all other criminal prosecutions, the burden is
on the government to prove the defendant's guilt. And if
after a full review of the case the guilt of the defendant
should remain doubtful, that doubt is to operate in favor
of his innocence. Though accused of a crime, you are to
weigh his conduct in the judgment of charity by that golden
rule which we should wish and expect in like circumstances,
should be applied to our own actions.

The fact of publication is admitted by the defendant; and
in an interview with Mr. Ellery, he confessed that the piece
was intended to apply to the Eussian consul.

In considering whether the piece is a libel you will read
it with attention, and apply to it the plain, unbiased judg-
ment of your understanding. "The technical definition of
the crime of libel is, that it is an excitement to a breach of
the peace, by means of a written instrument, containing
matter injurious to the fame and character of another.' ' Is
this piece injurious to the fame and character of the Eussian
consul? It begins with paying a compliment to the perform-
ances of the pupils, and to the skill and fidelity of their in-
structors. It proceeds to speak of a communication which
the editor had received, giving the "details of an unpleasant
and disgraceful disturbance, which occurred in the course of
the evening, the history of which would not do honor to the
parties concerned." So that the writer was aware, that he
was upon a subject of delicacy affecting the characters of

JOSEPH T. BVCKINGHAM. 543

other persons. Mr. Eustaphieve is then introduced under
the description of "the rugged Russian bear," as being a
conspicuous actor in the scene, "in consequence of his at-
tempting to jump with his cocked hat and all, down the
throat of one of his opponents." He then says, that it was
best, at that time, not to express an opinion on the subject,
but to leave it to him, "who while he is the representative of
the great autocrat of all the Eussias, &c, does not deem it
a derogation from the dignity of his high vocation, to become
a party in the quarrels of dancing-masters and fiddlers."
Thus bringing the details of this scene into direct connection
with the office which he held, and leaving it to be inferred,
that though he was the representative of the Emperor Alex-
ander, he was yet a party in the quarrels of dancing masters
and fiddlers.

Now it is for you to judge, whether this piece has the ten-
dency, which the indictment alleges, to degrade the Russian
consul in public estimation as a man, and to affect his stand-
ing in his office. Consuls are persons appointed by the sov-
ereign of a state, to reside in foreign ports, for the purpose of
taking care of the commercial interests of his subjects trans-
acting business there. They are usually persons of known
probity and commercial intelligence, and are expected to
understand not only the laws and rights of their own country,
but the laws and customs of the place where they are ap-
pointed to reside. It is their duty to aid and protect their
fellow subjects, and to advise and assist them in all cases
wherein their rights or interests may be concerned. The
affairs of trade, and the interests, rights and privileges of
merchants and seamen in foreign countries, are ordinarily
left to their conduct. It is expected of them, that they cor-
respond with the ambassador from their respective sovereigns
to the government of the country, within whose dominions
they are stationed, and that they should send him informa-
tion of any transactions, which may affect the political or
commercial interests of their country. And in case there is
no ambassador or other public minister from their soverign
residing in the country, they are to transact their letters

544 XIV. AMERICAN STATE TRIALS.

directly home to the government which appoints them.
Though a consul be not a public minister, under the pro-
tection of the law of nations, he yet enjoys some important
privileges annexed to his office, which distinguish him from
the private inhabitants of the place where he resides. So
that you perceive, that from their situation, consuls are
officers of honor and trust, and that it is in their power to do
great good or harm, and even to affect the relations of
friendly countries; and hence arises the importance, that
consuls should be honorable men, and that they should sup-
port the dignity of their station by their grave and prudent
deportment.

You are to consider, whether representing an individual,
who holds an office of this kind, as guilty of disgraceful con-
duct, and engaging in the quarrels of dancing-masters and
fiddlers, is not injurious to his fame and character. In com-
mon with all other citizens, Mr. Eustaphieve is entitled to be
protected from unlawful attempts to render him an object
of odium or contempt. And in rendering him an object of
odium and contempt as a man, you will consider, whether his
official character will not be sacrificed. It is not to be sup-
posed, that his government will retain an officer in a station
of confidence and responsibility, if he maintains not a char-
acter becoming that station. So that it is not foreign to
your duty to inquire, whether the piece complained of has
that tendency, and if it has, whether it will not also tend to
provoke him and his friends to acts of revenge, and so to a
breach of the peace, which is the definition of the offense.

And here, you will recollect the construction which the
counsel for the defendant have put on this piece. They say,
with truth, it contains no charge of official misconduct, nor
any imputation on the moral character of the Russian consul.
They also say it is harmless, sportive wit, which a wise man
would disregard, and that no good comes from prosecutions
of this description. And they call upon you to give to the
words the most favorable sense; and it is undoubtedly your
duty to do so, but you are not to violate your understanding
by giving to the words any signification which is not consist-

JOSEPH T. BUCKINGHAM. 545

ent with sound sense and the common meaning of the lan-
guage.

You will next inquire if the intent of the defendant in
publishing this piece was malicious, and if you find that it
was done deliberately and wilfully, and that he persisted in
it improperly, this will be evidence of malice. To this point,
the testimony of Mr. Ellery is material. He says, that as a
friend of the Russian consul, he called on the defendant, in
January last, and informed him that the publication had
greatly wounded the feelings of that gentleman, and that he
was apprehensive it would injure him with his government.
To this the defendant replied, that he bore no ill will to the
Russian consul, that he had no knowledge of the circum-
stances, that he had written and inserted the piece on ac-
count of a communication which he received on the subject,
that he had no acquaintance with Mr. Eustaphieve. Mr.
Ellery then proposed to him to publish an apology, that the
redress might be as public as the injury. He showed to the
defendant a piece which he had written for this purpose.
But the defendant declined publishing this, and then wrote
a piece which he was willing to publish. It purported, that
as many persons had asserted that the conduct of the Russian
consul at the ball was improper, and others equally re-
spectable insisted that it was correct, it was not for him, the
defendant to decide the matter. This piece was not satis-
factory to the Russian consul. Now the counsel for the de-
fendant says, that his conduct in this particular was very
proper, for if he had published a disavowal of the slander
under such circumstances, he would have deservedly for-
feited the confidence and patronage of many of his friends
and patrons. I exceedingly regret that this negotiation was
not successful, and I think it is much to be lamented, that
when the defendant wrote this piece, his prudence did not
suggest to him, that, possibly, he was about to inflict a severe
wound in the breast of a man, who, he says, never injured
him, and against whom he declares, that neither at that time,
nor at any other, had he entertained any malice.

With the scene at Concert Hall, and with the conduct of

546 XIY. AMERICAN STATE TRIALS.

those who were engaged in it, you have no concern at this
time. If a riot was committed there, let those who were en-
gaged in it be prosecuted according to law. If the Russian
consul committed any offense against the laws, or against
good manners, he is as liable to legal animadversion as any
citizen. His official character does not protect him. But let
it not be understood, that the printer of a newspaper may
publish a piece, calculated to bring this gentlemen into con-
tempt with us or with his own government, and thus to
destroy him, without trial and without a hearing. We do not
hold our characters at the mercy of the printers of any news-
paper. By our laws, a citizen may not be charged with any
disgraceful or flagitious conduct, affecting his good name, his
standing in society, or his employment, except before the
judicial tribunals of the country, where he may be heard in
his defense, and be tried according to the established rules
of law. That the law of libel is ancient, and dates from a
period beyond that of newspapers, is no reason, in my opinion,
for relaxing its principals. The printer of a newspaper has
power in proportion to his talents, to the interest which he
excites, and to the diffusion of his publication. Who is the
perfect man that may not, in the hands of the eloquent and
ingenious satirist, be placed in an uncomfortable situation?
What is so venerable or sacred, as not to have been subjected
to the shafts of ridicule? And if, whenever we open a news-
paper, we are to expect to find some extravagant representa-
tion of ourselves or of our neighbors, something caricatured
either of praise or of blame, who that is conscious of the de-
fects which are incident to the human character, would wish
to live in such a society?

While all protection and encouragement are to be given to
the directors of the press, in diffusing intelligence, in im-
parting instruction, and in the free, manly discussion of all
truths affecting religion, morals, government, and whatever
concerns human happiness ; there is a limit beyond which, if
they pass, it must be known, that they violate the law.
Whether this is one of those cases, is left to your judgment
to decide.

JOSEPH T. BUCKINGHAM. 547

THE VERDICT AND SENTENCE

The jury after a conference of two hours returned into
court and found the defendant guilty on the first count and
not guilty on the second.

He was sentenced to suffer imprisonment in the common
jail for thirty days and to pay costs of prosecution.

From this judgment he entered an appeal.

This appeal was tried before Wilde, J., before the supreme ju-
dicial court in the November term, 1824. The law as laid down
was fully recognized and confirmed by him in his charge to the
jury. The defendant was found guilty and again sentenced.

THE TRIAL OF ISAAC COTTERAL AND PETER

CRANNEL, FOR ARSON, TROY,

NEW YORK, 1820.

THE NARRATIVE.

Two men were confined in a county jail, one of them hav-
ing been convicted of Horse Stealing and awaiting his sen-
tence; the other about to be tried for assault and battery.
They were not content with their place of residence, even
though the jailer and his family lived there. So one night
they carried some live coals from the stove and placed them
in a crack between two of the boards in the floor, their inten-
tion being to burn a hole large enough to enable them to pry
up a plank and escape through the hole. But before this
was accomplished the fire was discovered and extinguished.

They were indicted for the crime of arson which at that
day, if the place burned was an "inhabited dwelling," was
punished with death. On the trial the Chief Justice ruled
that the jail was an inhabited dwelling but he held that they
had not wilfully set fire to it for the purpose of destroying
it which was necessary to make their act arson; for they
intended not to burn the building but only to make such a
fire that they might escape from it. So they were not guilty
of arson and must be acquitted.

THE TRIAL.1

In the Court of Oyer and Terminer, Troy, New York,
March 1820.

Hon. Ambrose Spencer,2 Chief Justice.
Hon. William W. Van Ness,3 Justice.

i New York Criminal Recorder, See 1 Am. St. Tr. 61.
2 See 1 Am. St. Tr. 789.
s See 1 Am. St. Tr. 780.

(548)

ISAAC COTTERAL AND PETER CRANNEL. 549

March 21.

The prisoners, Isaac Cotteral and Peter Crannel were
charged with arson. They pleaded not guilty.

Thomas J. Oakley,4" Attorney General and William Mc-
Manus,5 District Attorney for Rensselaer County for the
People ; John Wells6 and Ebeneezer Griffin,7 for the Prisoners.

The indictment which was under the statute "that every
person who shall hereafter be convicted of burning any in-
habited dwelling house shall suffer death," contained three
counts: the first, for having, on the 3d of March, 1820, set
fire to a certain inhabited dwelling house, of one Jacob De-
forest, in Troy, and thereby feloniously, wilfully, and ma-
liciously burning, consuming, and destroying the same. The
second, for setting fire to the jail of Rensselaer, being the
dwelling house of Deforest, inhabited by him and his family,
and feloniously burning the same. The third count recited,
that the prisoners, with others, were confined in jail, and al-
leged, that, on the 2d of March, they, feloniously, wilfully,
and maliciously, set fire to the same jail, being the dwelling
house of Deforest, the keeper, and inhabited by him, his wife,
children, and servants, and the prisoners of that county, con-
fined by civil and criminal commitments; and the same jail
being contiguous to other buildings, &c. with intent to burn,
consume, and destroy the said jail, &c.

THE EVIDENCE.

The prisoners, with ten others, resided below, in the second

were confined in the southeast story. In the room where the

room of the second story of the prisoners were confined, plank,

jail. Deforest, and his family. within the brick walls, were

4 Oakley, Thomas Jackson (1783-1857). Born Dutchess Co., N. Y.
Grad. Yale 1801. Studied law and began practice at Poughkeepsie :
Surrogate Dutchess Co. 1810. Member of Congress 1813-1815, 1827-
1829, Atty Gen. N. Y. 1819. Member N. Y. Legislature, 1816-1820;
1828. Judge Supreme Court 1828-1846; Chief Justice 1846-1857.

b McManus, William; Surrogate Rensselaer Co. N. Y. 1815-1818;
Member of 19th Congress 1825-1827; Dist. Atty. Rensselaer Co. 1818-
1821.

e See 1 Am. St. Tr. 790; 12 Id. 351.

7 See 1 Am. St. Tr. 790; 7 Id. 4.

350

XIV. AMERICAN STATE TRIALS.

spiked, perpendicularly, to tim-
bers; and strips of iron were
then put upon the plank, and an-
other tier of plank were horizon-
tally laid over the iron bars.

On the night of the 28th of
February last, the prisoners set
fire to the jail, by putting coals
of fire into a crack, between two
of the plank lining of the room.
They carried coals from the
stove, put them into the crack,
and blew them into a flame.
Their object was to make a hole
large enough to introduce a pry,
for the purpose of prying off the
plank, and by that means, effect-
ing their escape. In this they
did not succeed, and the fire was
extinguished. One Burr, a de-
ranged man, being confined in
the same room, was induced, by
the prisoners, to acknowledge
that he did the mischief, and
was confined, by the keeper, in
one of the cells.

On the night of the second of
March at about eleven o'clock,
the prisoners, in the same man-
ner as before, and in the same
place, kindled fire, for the pur-
pose of burning a hole through
the plank, large enough to pass
through, and escape from prison.
A considerable quantity of water
had been saved, by the prisoners,
out of their allowance; and, as
the firing progressed, they
brought water in a cup, and cast
it on the fire, to prevent its
blazing and spreading. They

hung up a blanket before the
place where they were engaged,
to conceal the fire from the
other prisoners, who were in
bed, and a blanket was placed
before the window. Threats were
uttered against any of the pris-
oners who should say anything
about the firing; and Cotteral
said, "In about fifteen minutes
we can be out, and those who
will, may go, and those who will
stay, may stay and fight fire!"

The prisoners had succeeded
in burning a hole through both
tier of plank, large enough for a
man to pass through, and one of
the iron bars was turned up, and
a brick was removed. At this
time, a quarter after three in the
morning, John Prescott, one of
the watchmen, saw a smoke
coming out of the jail, near the
chimney, and gave the alarm of
fire. The water, used by the
prisoners in deadening the fire,
was expended, the fire blazed
through the plank to the top of
the room, and was beyond their
control; and the jail would have
been consumed, but for the ex-
ertions of the citizens. The fire,
however, was extinguished, with-
out any material injury.

Cotteral was confined in the
jail, for horse stealing, of which
he had either before or after the
fire, been convicted; and Cran-
nel was confined for an assault
and battery.

The Attorney General argued, that the jail is an inhabited
dwelling house, within the meaning of the act;8 the jail was
burned, though not entirely consumed;9 this was a wilful

s Van Blarcom's Case, 2 Johns, 105.

9 Rose Butler's Case, 2 Johns, 195 ; 4 City Hall Recorder. 77.

ISAAC COTTER AL AND PETER CRANNEL. 551

burning within the act. The definition of arson, at common
law, is, "the malicious and voluntary burning the house of
another. ' ' Malice is either express or implied ; and where, as
in this case, the act appears to have been the result of design,
the prisoners are to be presumed to have acted with malice.
They were confined for a felony, and it has been decided,
that a breach of prison by one, so confined, amounts to a
felony. The intent to break the jail was felonious, and the
prisoners, harboring such intent, at the time the fire was com-
municated, are responsible for the consequences. If a man
sets fire to his own house, and it burns that of another, this
is arson. The same doctrine applies to homicide. Where a
man, engaged in an unlawful act, kills another, this may be
murder, or manslaughter, according to circumstances. The
law implies malice, from the unlawful act. The principle is
applicable to the case of arson; for there is no reason why it
should not apply.

Mr. Wells and Mr. Griffin admitted that a jail was an in-
habited dwelling house, and that in this, according to the au-
thority of Rose Butler's case, there was a sufficient degree
of burning to constitute arson, under the statute. But they
argued, that according to the facts in this case, the prisoners
were not guilty of wilfully burning the jail, according to the
true construction of the same act. Its wording is peculiar:
it must be a wilful, and not a malicious burning of an in-
habited dwelling house. The word wilful, here means an in-
tent to burn and consume the building. The act was passed
to prevent the consummation of such intent, and not that to
escape from prison. That the prisoners did not intend to
consume the jail, appears from the case: they cast on water,
to prevent the fire from blazing and spreading. Here, there
was no attempt to commit arson; and though the burning
was voluntary, it was not with the purpose and design of con-
suming.

Though an actual escape from prison, or the aiding others
to escape, might be considered as felonious, yet, the bare at-
tempt, by a prisoner, to escape from prison, was not felonious,
either at common law, or under the statute. The doctrine of

552 XIV. AMERICAN STATE TRIALS.

implied malice, urged by the Attorney General, did not apply
to the crime of arson denned in our statute.

The Chief Justice : The law relating to arson, is peculiar.
It is true, that any ignition of an inhabited dwelling house,
with an intent to consume, where the fire is either extin-
guished, or goes out of itself, is a sufficient burning to con-
stitute this crime; and it is equally true, and so it has been
decided by the court, in the case of Van Blarcum, that a jail
is an inhabited dwelling house, within the meaning of the act.
Every part, therefore, of this offense has been committed by
the prisoners, unless it appears, from a fair construction of
the act, that according to the facts in the case, they are not
guilty of wilfully burning the jail. The case stands on very
peculiar grounds. It manifestly appears that it was the in-
tention of the prisoners, to burn for the purpose of effecting
an escape. The attempt to escape, is not a felony, either at
common law, or under the statute ; and, according to our con-
struction of the statute, we think that it would be straining
the doctrine too far, to decide that the firing of a prison, by
a prisoner, for the purpose of effecting his own escape,
amounts to arson.

the verdict and sentence.

The Jury found the prisoners guilty as to the first firing.

The Chief Justice sentenced Cotteral ten years to the state
prison, for horse stealing; and ordered the other prisoner to
be remanded to the jail of Rensselaer.

THE TRIAL OF JOHN WARD FOR THE MURDER
OF MRS. EPHRAIM GRISWOLD, BUR-
LINGTON, VERMONT, 1866.

THE NARRATIVE.

One morning in August, a neighbor stopping at the farm-
house of Ephraim Griswold, a few miles from Burlington,
Vt., found it locked and its occupants absent. But a small
boy calling for release from a second floor window attracted
his attention, and led him to enter the kitchen where he dis-
covered blood on the floor, Mrs. Griswold 's room in disorder,
the bed stripped, the bureau rummaged and all the silver-
plate of which there was a great deal in the house, taken
away. Tracks of blood were followed from the kitchen door
to the barn. There in a calf -pen, in her nightclothes, wrapped
in quilts from the bed was the dead body of Mrs. Griswold,
her throat cut, stabs and cuts on her head and hands, and
her skull fractured by blows from a blunt instrument.

It was soon known that all the family, which consisted of
Mr. and Mrs. Griswold, Charles H. Potter and his wife (who
was an adopted daughter and heir-at-law of Mrs. Griswold)
and two children of the latter and a boy named Call, with
the exception of the boy and Mrs. Griswold, had left for
Canada on the morning previous to the murder. Mrs. Gris-
wold was 57 years old — a woman of strong, vigorous frame
and great resolution — active, industrious and successful in the
accumulation of property, but very domineering and quar-
relsome.

On the morning after the murder and before the facts
were widely known, a man appeared at the railroad station in
Burlington as the early train was about to start and sought
the privilege of riding in the car with the express messenger
from New York on the score of his acquaintance with the
"express boys" in that city. His appearance excited the

(553)

554 XIV. AMERICAN STATE TRIALS.

observation of the messenger, for his shoes and clothing were
dirty and stained with blood and his manner was excited.
He explained that he had just come from a fight with four
men, having come off victor after a hard struggle. Later this
man was discovered in New York City; he proved to be a
person named Ward or Levigne1 with a criminal record, with
no trade or occupation and the companion of thieves and
crooks. It was found that he had been in the vicinity of the

1 Very little was ever known of him as he was a stranger to the
scene of his crime. Even the prison chaplain who wrote the ac-
count of the trial and of his life after sentence had only the fol-
lowing to say of his previous career: "Who is he — what his true
name — his parentage and past history? To these questions we
can offer only partial reply, since to the very last, his reticence
on these points was most remarkable. In the light of the sequel,
we may here say, that he was unquestionably connected with a gang
of the most adroit and desperate villains that ever existed on this
continent. He was bound to his confederates, whose centre of
operations was New York City, with branches in almost every part
of the land, by the most awful oaths, to secrecy, vigilance and un-
faltering fidelity. His 'pals,' or associates, were sworn to assist
him with money, tools, arms or any other aid needful to elude
arrest, escape imprisonment, or slay any that stood in the way to
his ends. Although he was less than thirty years of age, he had
for some time been an expert 'jobber' in the foul business of crime.
It was a 'job' which brought him to Vermont, and its horrible work
which led to his arrest and conviction for the crime of murder.
He is a remarkably well built, lithe, muscular young man, about
five feet ten inches in height, weighing about 140 pounds — erect,
with dark hair, keen, round, dark hazel eyes, and dark eyelashes
and eyebrows. His complexion is fair, and his features regular.
His step and motions are quick and vigorous. He is twenty-six
years of age, and though calling himself a machinist by trade, his
hands are as soft and delicate as those of any city exquisite. He
answers to the name of Ward or Lavigne; says he does not care
which he is called; hints that he was born in St. Louis, Missouri;
that his father was of German origin and his mother Irish; that he
was bred a Catholic, but that he is 'no Catholic' His speech bears
a slight foreign accent, and his demeanor in public, or to one not
in his confidence, is that of calm, resolute defiance. He has a
degree of education which excites doubt of his word concerning his
parentage. He reads well, and has evidently considerable general
and historical knowledge of the world. His hand-writing is plain
and graceful, and his spelling generally correct, and his sentences
mostly grammatical- Of religious tenets he has more information
than many suppose. He is quick of perception, close in observation,

JOHN WARD. 555

murder some weeks before and had even visited the farm pre-
tending to be engaged in the purchase of horses.

The marks of the death-grapples in the kitchen, the size
and strength of the victim, the distance over which the body-
was carried, the condition in which the house was found and
the amount of plunder that was taken, suggested the prob-
ability that at least two persons were concerned in the
assassination. Therefore when it became known that the
Potters were on bad terms with Mrs. Griswold, that she had
hinted more than once that she was going to disinherit Mrs.
Potter, and that Mr. Potter had frequently threatened her,
this with the fact of the absence of the family at the time
of the murder as if by some concerted arrangement, led to the
indictment of Charles H. Potter with John Ward for the
crime.

The trial resulted in the conviction of Ward who was sub-
sequently hanged and the acquittal of Potter. But in a
written confession, given to the Prison Chaplain, the day
before his execution, Ward declared that he and a man named
Moore had been hired by Potter to murder Mrs. Griswold.

THE TRIAL.2

In the Chittenden County Court, Burlington, Vermont,

April 1866.

Hon. John Pierpont,3 Chief Justice.

Hon. William V. Reynolds, ^Judges.

Hon. Safford Colby,

}

easy in manners, lively or forbidding in conversation, with marked
relation to his feelings or confidence. But he is a mystery — a young
man really unknown and inaccessible to any pleas for disclosing the
secret which he persists shall be buried with him respecting his
true name and parentage. Of the bloody deed of which he is con-
victed, he solemnly protests that he is wholly innocent. His faith
in ultimate escape by the friendly aid of boon accomplices, appears
to be abounded, and his confidence in them unlimited. Such is the
man that leaves the jail at Burlington, to enter the Prison at
Windsor, from which he is never to depart save by death."

2 Bibliography. John "Ward, or The Victimized Assassin, a narra-
tive of facts connected with the crime, arrest, trial, imprisonment,

556 XIV. AMERICAN STATE TRIALS.

April 9.

John Ward alias Jerome Lavigne and Charles H. Potter
had been previously indicted for the murder at Williston, Vt.
on the morning of August 28, 1865 of Mrs. Ephraim Gris-
wold. They pleaded not guilty. The trial began today.

L. B. Englesby* States Attorney and E. R. Hard5 for the
State; Daniel Roberts,6 Jeremiah French7 and Henry Bal-
lard8 for the Prisoners.

The following jury were empannelled : M. N. Hosford, Francis E.
Gale, Joseph Bean, Dean Hosford, Wm. Sanderson, Christian Van
Vleit, Simeon M. Mead, Heman Sprague, Geo. Allen, F. C. Wilcox,
Truman Fay, David B. Thompson.

Mr. Englesby opened the case for the prosecution. He exhibited

and execution of the Williston murderer, who was hung in the
State Prison at Windsor, Friday, March 20, 1868: Together with
his confession, intercepted correspondence, and the chaplain's diary
of visits, etc. By the chaplain. Vermont Journal Print 1869. This
book written by the Chaplain of the State Prison at Windsor,
Vt., contains a report of the trial, taken from the Burlington Times,
the subsequent legal proceedings, his attempts to escape from prison,
his intercepted correspondence, his life in the State Prison where
under the Vermont law he had to suffer solitary confinement before
being executed, his confession and execution. The frontispiece is
a woodcut of the criminal and his autograph "Jerome Lavigne."

3Pierpont, John (1805-1882). Born Litchfield, Conn. Member
Vermont House of Representatives, 1841. State Senator 1855-1857.
Judge Supreme Court 1857. Chief Justice 1865-1882.

* Englesby, Everett Brush (1827-1881). Born Burlington, Vt.
Graduated Uni. of Vt. 1845. Studied law Harv. Law School one
year and with Phelps and Smalley, Burlington. Admitted to Chit-
tenden Co. bar 1848. State Senator 1865-66, and president pro tem-
pore. State's attorney Chittenden Co. 1867-69. City auditor, asses-
sor and city attorney, Burlington. Trustee Univ. of Vt. and for
ten years member executive committee. Mason of high degree. See
Carleton, Vt. Family hist.

s Hard, Eleazer Ray (1824-1899). Born Essex, Vt. Admitted to
bar Chittenden Co. 1845; began practice in Jericho. Moved to Bur-
lington 1852. Attorney for many large interests and corporations.
State's attorney Chittenden Co. 1857-60, 1869-70. Member city
council, Burlingon, 1862. State Senator 1867-68. City attorney
1868-70. For fifty-five years a member of Chittenden Co. bar. Died
at Burlington. See Vt. Bar Assn. proceedings, 1901. Vt. Hist. Mag-
azine.

e Roberts, Daniel (1811-1899). Born Wallingford, Vt. Grad-

JOHN WARD. 557

to the jury a large chart of the Griswold place. He related to the
jury the circumstances of the murder, and that the prosecution
intended to prove: First, That there had been a bad feeling be-
tween Potter and Mrs. Griswold. Second, That Lavigne and Potter
had been seen together, and in conversation previous to the murder.
Third. That the morning after the murder Lavigne took the Rut-
land cars, and that in conversation with an expressman in the ex-
press car he showed blood on his pantaloons and drawers, and
related a story of a fight with some parties in which he said he had
used his revolver and billy. Fourth, That Lavigne returned to this
vicinity disguised, a few weeks afterwards, and took the cars at
Charlotte, but was arrested, where was found on him a revolver
and billy, a vial of chloroform and an eye patch. Fifth, That he
attempted to use his pistol on the arresting officer. Sixth, That he
mentioned in conversation circumstances which could only be
known to one concerned in the murder.

THE WITNESSES FOR THE STATE.

Morris Sullivan. Am a neigh- 8; the boy called from up stairs

bor of Mrs. Griswold; the night to let him out; I did so; saw

before the murder saw her and blood on the doorstep; asked him

the boy Call about 9 in the pas- where the old woman was, he

ture putting up the bars; went said he supposed in bed; I hal-

to the house next morning about lowed but got no answer; sent

uated Middlebury Coll. 1829. Admitted to bar Rutland Co. 1832.
Practiced law Jacksonville, 111., 1833-35. Wallingford 1835-36. Man-
chester 1836-56. Burlington 1856-1899. Bank commissioner 1853-54.
Special agent of U. S. Treasury Dept. 1865-66. Author "Digest of
Decisions Supreme court Vt. 1789-1876"; "Courts of United States
for District of Vt." 1878; "Vermont Reports" (1876-88). See Rann.
Hist. Chittenden Co.; Vt. Bar Assn. v. 5; Ullery, Men of Vt.

7 French, Jeremiah (1835-68). Born Williston, Vt. Studied at
Univ. of Vt. Graduate Harv. Law School. Began practice in Bur-
lington with Levi Underwood. Soon had a large and successful
practice, notwithstanding his constant struggle with a disease to
which he succumbed when only 33 years old. See Harvard Uni.
Quin. Cat. 1636-1905. Rann. Hist. Chittenden Co.

s Ballard, Henry (1839-1906). Born Tinmouth, Vt. Graduated
Univ. Vt. 1861; Albany Law School 1863. Served one year in Civil
war. Began practice in Burlington 1863 and remained there all
his life. State Senator Chittenden Co. 1878-79. Delegate to Repub-
lican National Convention, Chicago 1884 and chairman of Commit-
tee on Credentials. City attorney, Burlington. Member Legislature
1888-89. Reading Clerk Republican National convention, 1888.
Member of G. A. R. and Judge Advocate for that order in Vt. See
Carleton, Vt. Family Hist. v. 2; Who's Who in New England; Ul-
lery Men of Vt. Rann. Hist. Chittenden Co. Vt.

558

XIV. AMERICAN STATE TRIALS.

the boy to call the neighbors
and we searched the house but
could not find her, searched out-
side and found her body in the
calf stable, partly stripped with
some old quilts wrapped around
her; there was blood in the
kitchen and the tracks of a man
without boots all over the floor;
found a piece of a knife there;
Potter's family and Mrs. Gris-
wold were not on friendly
terms; on the Wednesday or
Thursday previously saw a man
with Potter, a stranger; they
were riding in a box wagon;
have seen a man in jail supposed
to be the man but can't say
whether or not he is.

Cross-examined. Can't say
whether I saw Potter coming
back that day or not. Mrs.
Griswold was a quick-tempered
woman and when mad would
say almost anything; used to
scold the servants. Have known
Potter 15 or more years; the
Potters came there last Spring.
Never knew Potter to abuse the
old lady; heard Mr. Potter once
say they got quarrelling and he
threw a kettle of water on her.
Never heard Mrs. Potter abuse
the old lady; Mrs. Potter was
brought up by Mrs. Griswold
who thought a good deal of her.

Edward Call. Am 12 or 13.
Lived last August at Mrs. Gris-
wold's; slept over the kitchen.
Recollect a man coming to buy
a horse a week or so before the
murder; a white complexioned
man, a nice looking man. Mrs.
Griswold said the man came to
buy horses; caught Mr. Gris-
wold's horse for him to look at.
Man went with Mr. Potter to
the barn; took dinner there that
day, was in and out of the house.
He went away between 4 and

5 o'clock in a wagon with Mr.
Potter. Mr. Potter was going to
Essex after a stove, he came back
about 6 o'clock and brought
stove with him; man was all
around the dooryard that day.
Mrs. Griswold and Mr. Potter
did not quarrel that I know of,
they had some difficulty but
couldn't say when or what about.

Cross-examined. Mrs. Gris-
wold was apt to have difficulty
with people, sometimes attacked
them. Never saw Mr. Potter
abuse the old lady or Mrs. Pot-
ter. The man and Mr. Potter
came together. After dinner
they harnessed up and went
down after oats. Man had talked
about horses — about Mr. Potter's
and Mr. Griswold's horse; in-
quired how he should get to Es-
sex. Mr. Potter said perhaps he
could get Mr. Sullivan to take
him, Mr. Sullivan was not going
and Mr. Potter said he was go-
ing after a stove after he got the
grain in. Mr. Potter kept and
sold a good many horses. Other
people were there at different
times to look at horses.
Was with man considerable that
day; noticed he had a finger
gone on right hand. This does
not look much like the man,
think he is not the man, never
saw this man around Potter's.

Wm. K. Taft. Was present at
Mrs. Griswold's the morning aft-
er the murder. The tracks in
the house seemed to have been
made by a person in their sock
feet; did not think the tracks
were made by more than one
person; seemed as if the per-
son making them came from the
south. The window opening
from the dining room upon the
piazza bore marks of having
been pried open, the doors were

JOHN WARD.

559

evidently pried open by the
same instrument. The door from
the parlor into Mrs. Griswold's
bedroom was also broken open,
pried open as the other door.
Found in this bedroom a bureau
with the upper drawer broken
open. Examined the window of
the sitting-room, found marks of
blood on the sill. Mrs. Griswold
was reputed to be a woman of
property.

Mary Sullivan. Lived at Mrs.
Griswold's for some weeks be-
fore the murder. Was there
when a man came to buy horses
previous to her death. He took
dinner there that day; he had
rather a light complexion, black
whiskers and hair. Heard them
say he was buying a horse that
Mr. Potter had bought lately.
He went away about 2 o'clock,
heard Mr. Potter say he was
going to carry him to the junc-
tion; Mr. Potter returned home
before night, he brought a stove
with him; think have seen that
man since, saw him before the
Grand Jury last Fall. The pris-
oner Ward is the person I saw
at Mrs. Griswold's and in the
Grand Jury room. The family
did not live pleasantly together
all the time, they had some
words once in a while, heard
them have some words once
about a lock; Mr. Potter was
putting a lock on his bedroom
door, Mrs. Griswold thought he
did not do it well and wanted
him to get somebody to do it
who understood it; Mrs. Gris-
wold seemed to make the most
words about it. Mr. Potter was
not present at any of the alter-
cations between the old lady and
Mrs. Potter. Never heard any
altercation between the old lady

and Mr. Potter, except the one
about the lock.

Cross-examined. Mrs. Gris-
wold had had trouble with the
boy Call; never knew her to
have trouble with any of the
workmen except the boy; when
Mrs. Griswold got vexed she did
not seem to have any control
over her temper and would say
anything that came into her
mind. When I was there Mrs.
Potter had the management of
household affairs.

Dr. C. A. L. Sprague. Went
to Mrs. Griswold's the morning
after the murder; found the
body of Mrs. Griswold in a calf-
pen wrapped in a blanket; found
cuts on her throat and face,
three contusions on the left side
of her head, the scalp was
broken in three places and there
were also bruises on the left
temple and cheek, there were
also some bruises about the
chest, several small cuts in the
throat. The contusions on the
head seeemed to have been made
by some blunt instrument which
broke the scalp and fractured
the skull.

Curtis E. Baldwin. Live south
of Mr. Griswold's; had been in
the habit of taking care of their
horses and cattle; Mr. Potter
told me on Saturday that he was
going to Canada the next day;
heard Mr. Potter say a few
weeks before her death that the
old lady had got into a "stew"
and wanted to drive him off.
Said that he'd like to see her get
help enough to drive him away.
Never saw any quarrels between
Mrs. Griswold and the Potters.

Cross-examined. Potter did
not appear very angry when he
talked about the old lady; never
heard Potter threaten Mrs. Gris-

560

XIV. AMERICAN STATE TRIALS.

wold. Mrs. Griswold would
sometimes quarrel with people;
she was easily excited and was
apt to get out of humor.

George Williams. Heard Mr.
Potter say that God had got a
devil but not so great a one as
he had. Potter then remarked
that he would give $200 to put
that old devil out of the way and
if that was not enough he would
give $500; this conversation oc-
curred in the middle of July
last.

Cross-examined. This conver-
sation occurred at Mr. Potter's
table when I was at work there
haying. There was present at
the table Mr. Griswold, Mr. Pot-
ter, Ham Potter, the Frenchman,
Edward Call and myself. The old
lady had been "sputtering" about
some baked mutton on the table
which she said was not good;
she then got up and left the
table, then Potter made the re-
mark about "God had got a devil
but not half so big a one as he
had." He then said "I will give
$200 to get that old devil out
of the way, yes, by G — d, I'll
give $500"; didn't think he
meant his wife, neither did he
mention Mrs. Griswold's name,
he did not speak very loud.
Mr. Griswold could not hear for
he was deaf; did not think he
heard the remark.

Harry Charles. Reside on the
road between Williston village
and depot. When the morning
mail-train from the north, on
Wednesday, August 23d, 1865,
arrived at Williston depot, a
gentleman stepped off and asked
if there was any conveyance
to Williston. I told him I would
take him along and did so. He
asked me if I knew a man
named Charles Potter; asked

where he lived and I told him.
I carried him as far as Dr. Al-
ger's; he then paid me his
fare and I directed him where to
find Mr. Potter. He was a nice,
tidy looking young man, had a
brownish mixed coat on and a
low crowned black hat; his hair
was black and he had some nice
black whiskers and a black mous-
tache. Have seen this man
since; second time I saw him
was in Burlington jail, I next
saw him in the Grand Jury
room last Fall. The prisoner
Ward is the man.

The State's Attorney offered
evidence that Mrs. Potter was
heir-at-law of Ephriam and Sal-
ly Griswold. Torrey E. Wales
Judge of Probate testified that
the inventory of Mrs. Griswold's
property amounted to $6210.

Chauncey W. Brownell. Had
an interview with Mr. Potter a
day or two before the death of
Mrs. Griswold. He inquired about
Mrs. Griswold having come to
my house. He wanted to know
what she was going to do and
what she said about him. Told
him she did not say very much,
that she found some fault about
his being abusive to her. He
asked if Mr. Griswold found any
fault. I said he did not; he said
he could get along with Mr.
Griswold and with the old lady
as well as any body but the devil
could not get along with her.

Cross-examined. Had known
Mrs. Griswold a good while, she
was a woman who generally at-
tended to her own business;
should think she was not so easy
to get along with as the major-
ity.

Ephriam Griswold. Was the
husband of Mrs. Griswold. Mr.
and Mrs. Potter came to live

JOHN WARD.

561

with us in April a year ago,
lived there during the summer.
Had thought of going to Canada
but a few days before I went.
Potter spoke first of going on
Friday towards night; don't
know where Potter was on Fri-
day and Saturday previous to
the murder; he went away on
the fore part of each day, Fri-
day and Saturday, and came
back towards night; did not gen-
erally know where he was going,
sometimes he would tell and
sometimes not. I started for
Canada Sunday morning; Clark
Potter went with me. Charles
Potter and wife were all ready
to start when I did. Clark and
I started first and kept ahead
till we got to Essex; we did not
stop at Essex; have heard that
Charles Potter stopped at Essex.
Cross-examined. Wife was 57
or 58 years old. Adelia was
about three weeks old when we
took her to bring her up, she
always lived with us, did so
when she was married. Charles
and his wife lived with us soon
after they were married for
nearly a year and since last
April they have lived near us,
the families have been intimate.
Mrs. Griswold always thought
everything of Delia and the
children ; there was some
hard feeling in the summer.
Old lady generally spoke to
Charles if she wanted any
help. Delia always did
everything to please her till
they had some fuss last summer.
My wife, when in anger would
say what she was a mind to and
then would be sorry for it. She
always had the direction of her
own business and was a hard-
working woman out of doors
and in. This fuss last summer

was because Mrs. G. wanted to
go on and take charge just as
she used to but Delia didn't want
she should. Never heard Charles
threaten my wife. Had heard
of the murder; a man named
Brown saw it in the papers and
told me; we all started for
home that night and got home
Wednesday about four. I found
two pieces of a silver-plated tea
set, a water pot and another
piece had been taken, also a set
of nice knives and silver or sil-
ver-plated forks, also 12 silver
teaspoons, very heavy ones, and
six or seven silver table spoons,
all were taken from a cupboard
in the buttery, cupboard had
been wrenched open from the
top, the lock was broken. Every
bureau in the house had been
ransacked; remember a gentle-
man came on Wednesday or
Thursday before the murder; he
said he wanted to buy a horse
of Potter's — his black mare, I
told him "you can't have that
horse for love or money," asked
him how he knew anything about
that horse, he said he had seen
Potter drive it two or three
times; told him he need not
wait for he could not have that
horse. As we came back to the
house Charles drove up, I told
him the man had come to buy
his horse, he appeared as though
he did not know the man. Man
took dinner there that day, I sat
at the table, took no notice of
him, Charles told me he was go-
ing to take him to the depot,
they left at nearly four o'clock,
the man was a pretty smooth
looking young man, pretty good
looking; saw Jerome Lavigne
before the Grand Jury, could not
see any of the man's looks in
him.

562

XIV. AMERICAN STATE TRIALS.

[Lavigne stands up.] This
don't look like the man I saw
at the Grand Jury Room either;
should say this was not the
man I saw at my house.

Hiram B. Fish. Recollect
when Mrs. G-riswold was mur-
dered, worked for Mr. Tyler at
his hotel in Essex Junction, a
man came there Saturday night
before, he was there through the
day on Sunday, last saw him
about nine o'clock that evening,
he sat in the sitting room, read-
ing. I went to his room next
morning to call him to break-
fast; he was not there and the
bed had not been occupied, or
else had been made up, it was
not customary to make the beds
so early, have since seen a man
in jail I think to be the man,
suppose this is the man in the
prisoner's box. [Lavigne stands
up.] To the best of my recol-
lection this is the man.

Cross-examined. Don't recol-
lect about his pants and vest;
he wore a low crowned hat, a
soft hat of a grayish color; he
wore sidewhiskers and a very
light moustache; think his chin
was shaven. Had no particular
conversation with him. The man
left without paying his bill.

Elliott H. Bowman. Resided at
Essex junction last summer.
Saw Potter there the Sunday
morning before Mrs. Griswold's
death. Saw the carriage stop at
Mr. Tyler's hotel and Mr. Pot-
ter get in. Saw another man
standing with his arms on the
fence by the side of the carriage.
Saw Mr. Potter give him a cigar.
He then stepped round and got
into the carriage; there was a
woman and a child in the car-
riage. The carriage started
north and the gentleman went

with it. The man I saw leaning
on the fence I have since seen
in the jail, he is now in the pris-
oner's box.

John Redmond. Wednesday
previous to the murder, I met a
man inquiring for Mr. Potter on
the road; he inquired for Mr.
Potter's residence, directed him
to Potter's; the man wore a
black coat, a roundabout hat and
black whiskers; couldn't say
whether he had a black mous-
tache; think the prisoner, Ward,
is the man.

Park P. Wilkins. Saw Potter
the Friday before the murder at
my house at Winooski; asked
me to get in and ride with him.
Next saw him the day following.
Saw a couple of men ahead of
me who were driving smart,
they did not seem to desire to
let me go by, but finally I passed
them. Looked to see who the
parties were. Saw Mr. Potter
driving down the street with
the same team, this was about
noon. The man who was on the
near side was a dark complex-
ioned man with full whiskers
and a round top hat with wide
brim which looked as if a man
had stuck his fist into one side
of it; saw a man in jail in Sep-
tember last who looked like that
man. The prisoner Ward is the
same man.

Warren Atkins. Kept the ho-
tel at Winooski last August;
knew Potter by sight; recollect
the time of Mrs. Griswold's mur-
der. Mr. Potter came to my
house the Thursday or Friday
before the murder, he inquired
if a dark complexioned man had
called there, I told him there
had not. The Saturday after,
such a man came, he inquired
after Mr. P., this man was a tall-

JOHN WARD.

563

ish, slim man, dark complexion,
and dark side whiskers, his hair
was dark and he had on a dark
colored hat and clothes, think
Mr. Potter came there that fore-
noon, this man waited till he
came, the man said he had been
waiting some time for him; they
started off together, their wagon
broke, and they went towards
the blacksmith's shop, the man
came back after Potter went to
the shop and went into the bar-
room, he staid a few minutes, I
have seen a man that resembled
him very much last fall in the
Grand Jury Room, saw him the
time he was arrested, when Mr.
Flanagan brought him into my
house, thought he was the same
man that came to my house and
inquired for Mr. Potter, he had
some whiskers at the time, look-
ed as if he had a growth of
whiskers, and that they had re-
cently been shaved off.

Cross-examined. Mr. Potter
did not give this man's name
when he inquired for him; saw
Potter and this man together for
about five minutes; swear posi-
tively that this was the man
that was at my house.

Louis Loncke. Reside at Wi-
nooski; am a blacksmith. Saw
Potter the Saturday before the
murder at my shop, he came to
get his horse shod. There was
a man with him at the time;
did not see enough of the man
to recognize him.

Joseph W. Pratt. Reside near
the Williston Poor Farm; saw
Mr. Potter about four Saturday
afternoon, before the murder,
near my house; he was driving
east and had a man with him;
the man had a dark colored coat
and had whiskers and a mous-

tache; he also had on what some
call a "rowdy'* hat.

William H. French. Was cor-
oner at the time of the inquest.
Potter stated in his testimony
at the inquest: "I did not have
any conversation with anyone
at Painesville; stopped there
and got a cigar but did not see
anyone I knew. There was sev-
eral round the hotel when I was
there at Painesville, sitting in
the bar-room. I did not see any-
one after I left the hotel on the
road from there to Colchester;
did not have any conversation
with anyone I know of; did not
speak to anyone at the hotel, ex-
cept the man from whom I got
the cigar, and a man who was
holding a horse at the hotel
steps, who was grumbling about
it, and I told him to hold the
horse as long as he got pay for
it; I did not talk with any man
at Painesville, except as above
stated, did not walk along by
the team talking with anyone;"
Potter also testified, "There was
a person came to look at the
horse about two weeks since.
The gentleman said he was from
New York; he looked at Mr.
Griswold's horse more than at
mine; he came there at noon;
took dinner there. He did not
give his name and I did not ask
it; should think him from 35 to
38 years of age; I had been away
and found him there when I got
home. I carried him to Essex
Junction in the afternoon, to
take the train, have no recollec-
tion of the day when the man
came to buy a horse." Mr. Pot-
ter further testified, "The day
the king-bolt was repaired was
the last day I went to the Falls,
it must have been the first day
I went to see, and did see, Wil-

564

XIV. AMERICAN STATE TRIALS.

kins; I went to Burlington be-
fore I went to the Falls; no one
rode with me from Burlington
to Winooski; there was no team
that drove with me from Bur-
lington to Winooski that day.
* * * We did not intend to start
for Canada until late on Satur-
day night; a message was re-
ceived from some member of
Rev. Mr. Scott's family that he
was dead, and requesting Clark
Potter to be there."

George W. Kelly. Am a mes-
senger of the National Express
Company and run from here to
New York. I first heard of the
Williston murder when I return-
ed to Burlington the next Wed-
nesday night; heard that it hap-
pened the Sunday night before.
Monday morning one of the driv-
ers told me there was a man
who had been inquiring for the
messenger; the driver soon said
that the man was outside the
car waiting to see me. Stepped
out of the express car and this
man stood by the side of it; he
wanted to know whether he
could ride down with me and
said he was going to New York.
I told him, no, for it was against
the rules to let anybody ride
with me. Said he was acquaint-
ed with some of the boys in New
York and it would be pleasant
for him to ride down with me;
said he did not want to sponge
his ride as he intended to get
a ticket. Told him that as he
was a friend of some of the boys
in New York I would let him
ride, but would rather he would
wait until we got down the road
a piece. When we got to Ver-
gennes he came and got into my
car. After leaving New Haven
I got into conversation with
him; he told me he had had a

fight the night before somewhere
back of Burlington; said he had
been up here for three or four
days, said he had a little busi-
ness up here. When he had got
ready to start from Jack Mer-
rill's with a horse and carriage
which ne had hired at a livery
stable in Burlington he saw
four men watching him and he
started off then thinking he
would get out of sight of them
and drove along down until he
thought he had got away from
them and turned up the side
of the road and stopped; as soon
as he stopped he said he saw the
men coming again; they came
up to him and asked him what
business he had there. Said he
didn't know it was any of their
business; they replied "they
would make it their business"
and pitched on to him. He
fought them off until he got
away from them; said he struck
some of them and fired his re-
volver at them and didn't know
whether he had hurt any one or
not. He showed me his revolv-
er, a common six-shooter; don't
think I saw enough of it to iden-
tify it. This revolver looks like
the pistol the man showed me.
Said he fired off all the shots
there were in it; didn't know
whether he killed him or not;
thought from his appearance he
had walked from where stated
he had the fight; his shoes and
pants were quite dusty; showed
me marks of blood on his cloth-
ing; said he got quite bloody in
the fight, said his coat was so
bloody and torn that he could not
wear it, put it into his carpet
bag; he had a leather bag with
him which hung up in the car,
and one which was checked, they
looked rather slim as if they

JOHN WARD.

565

did not have much in them,
showed me where there had been
blood on his pants from his knees
to his feet. He had tried to wash
it off. The man was rather slim,
taller than myself, had very
dark hair and whiskers; had on
a cloth hat with a stiff crown
and brim. Saw him next day
in New York in west Broadway;
I was on the wagon at the time
and just said, "How do you do?"
Next saw him in the jail here
last October, recognized him as
the same man that rode with
me in the car, his appearance
was changed, his dress was dif-
ferent and his whiskers gone;
had a little conversation with
him in the jail; I said "Good
morning" to him, he replied,
"You've got the start of me — I
never saw you before." I told
him, "I guess you are mistaken
— you must have seen me be-
fore;" "You might have seen
me, but I don't think you ever
did; "he asked me where I had
seen him, told him in New York,
up by the Girard House; I told
him there was no use of his say-
ing that he had no recollection
of meeting me, for he knew me
well enough; he then asked me
if I had seen Ed. Pease — that
was the man whom he told me
he knew in New York when he
asked to ride in my car — Pease
was one of our express drivers
in New York; he then said he
didn't want me to say that I had
ever seen him before; said it
was life or death with him.

Cross-examined. He had no
whiskers when I saw him in jail,
nothing but a small moustache;
should think his whiskers had
been shaved off by the looks of
his face; did not have the same

hat on as when I saw him be-
fore; recognized him at once.

Noble B. Flanagan. Had been
employed by the authorities to
ferret out the author of the
Williston murder; made the ar-
rest of Ward, alias Lavigne.
First saw the prisoner in New
York about a fortnight after the
murder; I passed him on the
sidewalk, observed him as close-
ly as possible. Next saw him
on the cars at Charlotte the 19th
of September the second day of
the County Fair. The conductor
came and directed my attention
to this man; requested the con-
ductor to pass along and pay no
attention to me. I got up, went
to the door and opened it, found
prisoner standing on the second
step of the platform with his
hand on both sides of the rail,
with his head round the corner
of car to keep it out of sight.
Saw that he had lost his whisk-
ers; he was dressed differently
from when I saw him in New
York. I passed right through
into the car and closed the door
and sat down by the window on
a seat at the end of the car and
watched carefully until I caught
sight of the prisoner's face; he
was the man I was in pursuit
of. I went back to the other car
and requested Mr. Edwards to
come into the car and take a
seat there and keep an eye on
the prisoner; when I got to the
depot of the Rutland & Burling-
ton Railroad here, I learned that
the prisoner had left the cars;
when the cars started to go he
came out from behind a freight
car which stood on the side
track, and jumped aboard, he
took position on the platform
again, I went back where I could
keep an eye on him; when the

566

XIV. AMERICAN STATE TRIALS.

cars stopped at the Central De-
pot he got off and ran through a
crowd which was there waiting
to take the cars, behind the cars
which were going to Essex Junc-
tion; watched him until he got
out of sight behind the Central
train, then got on the forward
car of the train; when the cars
started a person came from be-
hind a pile of lumber and got
on the same platform that I stood
on, he drew a wide-brimmed hat
down over his eyes and pulled up
a handkerchief over his chin,
drew his coat collar up and sat
down on the second step; went
back and found Mr. Appleton,
and requested him to take up his
ticket and keep it; when I got
to Winooski I had Mr. Edwards
with me on the platform, and as
the cars stopped, the prisoner at-
tempted to step off as usual. I
seized him by the collar, hauled
him up on the platform, and told
him I must make a prisoner of
him, he asked what was the ac-
cusation, I replied, "Nothing but
murder." He said "that was
very strange, as he was an en-
tire stranger, and never was
through here before in the
world;" took him up the hill
from the depot, Mr. Edwards
had hold of his collar. I
saw prisoner slipping his hand
into his pocket; said to Edwards
"look out for his hand." We
took him into the tavern at Wi-
nooski; admitted to me that he
had been through here once be-
fore, said he came through about
a year ago in coming from Can-
ada. Searched him; I drew from
the pocket in which Mr. Ed-
wards took out his hand a
"seven-shooter," loaded, next
drew out of his waist-band a
"spring billy;" found a patch in

his vest pocket, also found on
him a lancet and a bottle of chlo-
roform; and in his coat pocket
among a parcel of songs, a cer-
tain paper. Said he was licensed
to carry them, and that he used
the chloroform for the toothache.
Told me he was a boatman
and was going to Rouse's Point
to buy a boat; found in his
pocket-book $3 in bills and a lit-
tle scrip.

Rollin Pease. Was keeping a
livery stable in this place at the
time of Mrs. Griswold's murder.
Had no teams out that evening
but one, which Mr. Patee had.
Heard of no fight between a
party of men that night.

Henry Ballard. Visited the
County jail to see Lavigne at his
request the first or second day
after his arrest. My impression
is I carried something to the
post-office for him within two
weeks after his arrest; the let-
ters were directed to New York
City. Have carried quite a
number of letters for him; can't
recollect if any one was ad-
dressed to Mr. Pease of New
York or not (Envelope shown to
witness marked "O") Can't say
if I carried that letter to the of-
fice. My impression is that the
direction is in Lavigne's hand-
writing.

Cross-examined. Am one of
the prisoner's counsel. Had
some conversation with Mr.
Bowman who testified yesterday.
I asked him to give me in detail
his evidence in this case; he did
so in substance as given in court.
I asked him if he was positive
that the man he saw in jail was
the man he saw with Mr. Pot-
ter at Essex Junction; his reply
was, "there was a chance for a
mistake about it." I said, "then

JOHN WARD.

567

you are not certain this is the
same man"; he further said that
he had never said it was the
same man. Have been some-
what active in looking up testi-
mony in this case.

Edward H. Pease. Reside in
New York City, have resided
there 13 years. In August, 1865,
was an expressman; am ac-
quainted with Mr. Kelly; am ac-
quainted with Lavigne or Ward;
his name is "Ward to the best of
my knowledge, always heard
him called by that name; recol-
lect being with Mr. Kelly in an
express wagon in New York one
Tuesday, and seeing Mr. Ward
on the sidewalk. Ward called to
me. Kelly asked me his name
and I told him. I had some con-
versation with Ward that after-
noon, about where he had been
that week. He asked me where
the messenger was who came
down the day before, said he
had seen him in the country
and rode a piece with him. He
did not mention any place. [En-
velope and letters marked "O"
shown to witness.] I received
those at my house..

Cross-examined. Ward did not
board with me; he professed to
be in the substitute brokerage;
he was never a driver in the
city to my knowledge; don't
know Patrick Hayes or Jenkins.

Wm. B. Munson. Have been
the keeper of the jail since last
August; have never known Ward
to complain of toothache in jail;
saw him every day, sometimes
three or four times a day. Ward
has never to my knowledge re-
ceived any money since he has
been in jail. [Objected to and
excluded.] Papers marked "S"
shown to witness. Have seen
this paper. It was handed to me

in jail by Morris Flanagan,
about two weeks since. Flana-
gan was then confined in jail.
The envelope was sealed when
handed to me. This letter (an-
other one) is addressed to Mr.
Counsellor Wilbur, Jericho Cor-
ners, Vt. Mr. Ward told me that
he wrote the letter. The letter
was handed me last Friday
morning by Daniel Harrington
in jail. I have here another let-
ter addressed to Luman Drew;
it is marked by my autograph;
I saw Mr. Ward write that let-
ter. About two weeks since, Pot-
ter told me I could help him if
I had a mind to more than any
man in the world. He said he
would give me $500 to assist him
or to do what I could for him.
He took a $50 greenback out of
his pocket and put it into my
vest pocket; said he meant what
he said. I took the bill out of
my pocket and wanted to have
him take it back; he refused and
I laid it either on the bunk or
on his knee; told him I would
do all I could for him fairly and
squarely and he said that was
all he wanted; said I could help
him about the jury if I felt so
disposed. He mentioned some
names that he thought would
make good jurymen who he said
had no ill-will against him.

Cross-examined. Potter re-
ferred to a prejudice against
him in this county. Said he
thought people were prejudiced;
he expressed fears that he should
not get a fair trial. His first re-
mark was to the effect that I
could help him have a fair,
square trial. In calling the jury
he wanted to call on men not
prejudiced against him. Told
him I had nothing to do about
the jury, that I should call on

568 XIV. AMERICAN STATE TRIALS.

men that had not been spoken der, there was no party of four

of to me. Think this was be- at my house the night of the

fore he showed the money. murder. Mr. Potter called at

Andrew Jackson Merrill. my house about the middle of

Heard of Mrs. Griswold's mur- the day, on Saturday he got a

der Monday morning. Had nev- cigar, he came from towards

er seen this man (Ward) before Winooski and went back towards

to my knowledge; have seen him Winooski.

once since in jail. There was The State's Attorney then read

no affray the night of the mur- the following letters:

Buklington, Sept. 25, 1865.
Friend Pease:

I have been arrested in Burlington, and am now in jail. Tell
Kelly that he must not know anything about me at all, if he is
called on. I was taken off the train last beyond Burlington.

Recollect Kelly must not know me and I want you to tell him so.
No more at present. Yours respectfully,

JEROME LAVIGNE,

Burlington Jail, Vt.

Don't write at all. Merely do as I tell you, &c. W d.

This envelope was directed "In Haste" to Mr. Edward H. Pease,
324, 9th Avenue, New York.

Burlington, Sept. 30, 1865.
Friend Pease:

I write again to inform that K., the rake, has been here looking
at me, but did not say if he knew me or not. He told me he had
not seen you at all; that he had not been in New York in three
weeks. If you see him you will tell him to say that I am not the
man at all, that he has seen the man in New York since. You will
see the policy of this. He merely said here that he had seen me
before, and when I asked him where, he said in New York, that is
all very well, it amounts to nothing. I spoke a few words to him
on the sly, and he said that he would not do anything that would
hurt me. I want you to see him and talk to him on the subject. I
have sent my brother seventy-five ($75) for him to pay the expenses
of the party up here.

And I have got more ready when they come. I wish you would
go and see him, and find out what he is doing in the matter. He
stops at 439, 7th Avenue, cor. 37th street, in Strain's Porter House.

I have sent for him for a witness, and also for Strain and Jen-
kins, folks who I was living with, and Murray, who keeps that
porter house, corner of 30th street and 6th avenue. Please go and
see those parties and let me know if they are coming up, and also
if you are coming.

Hoping that you will attend to those matters,

I remain yours respectfully,

JEROME LAVIGNE.

JOHN WARD.

569

Direct all letters to Jerome Lavigne, care of Mr. Henry Ballard,
Burlington, Vermont. I have got two lawyers in the case at pres-
ent. Hurry them up down there, as the trial comes off this week.
I have sent for eight (8) witnesses besides yourself. [W.]

Mr. Englesby next submitted a paper found by Mr. Flanagan upon
the person of the prisoner Ward. The paper consisted of the song,
"Pat Malloy," printed on coarse news print, with a fancy border.
Upon the back of the sheet was scribbled a number of figures and
the following: "John Ward, Canal Boat, F. J. Davis. Albany to
Oswego."

THE TESTIMONY FOR THE DEFENSE.

Jackson Potter. Am a cousin
of Charles Potter. Charles came
to my house the Sunday before
the murder in a covered car-
riage with wife and daughter
Katy; remained all night at my
house, said he was coming from
home and going to Canada. We
sat up that night until nearly
ten o'clock; suppose he then
went to bed. Went to the stable
next morning before he got up.
Charles' horse had no appearance
of having been out the night be-
fore. They took breakfast.
Wednesday morning he called at
my house with the same team;
think Katy was not in; he mere-
ly watered his horse, said he
had come from Canada and was
going home.

Electa Potter. Am wife of
Jackson Potter; remember
Charles Potter coming on Sab-
bath day, same day of the mur-
der.

John A. Potter. Am cousin of
Charles Potter. Mr. Griswold and
Clark Potter stopped at my
house about 6 o'clock Sunday of
the murder, saw Charles next
morning coming from Jackson's
with the same company and wife
and children, observed the horse,
who looked well, he appeared
fresh.

Edmund Waite. Keep the toll-

gate in Sheldon, knew Charles
Potter, remember his passing
through about 4 o'clock Sunday
of the murder, the first carriage
with a young man and Griswold
passed through just ahead of
Potter's carriage, saw the same
teams again Wednesday morn-
ing, then saw Potter's face, Pot-
ter's team did not to my knowl-
edge pass through again Sun-
day night.

Edward Call. Remember
when George Williams was at
the table and the complaint took
place about the meat; Dr. Ham
was not there, he had not come,
she said the meat smelt bad,
Mr. Griswold said it was good,
and eat a big piece, the old lady
said nothing, but soon got up
and left the table, Charles said
if she did not eat any, there
would be more for us, said noth-
ing more, made no remark about
giving money to any one to take
her out of the way, made no re-
mark about the devil.

Katy Potter. A man came to
the house the Wednesday before
Mrs. G. was murdered, father
was not there, he talked with
grandpa about the horse, talked
about the black mare, grandpa
said he could not have her, Ed.
Call went down to the field and
caught grandpa's horse, he took

570

XIV. AMERICAN STATE TRIALS.

dinner at our house, one of the
middle fingers on his right hand
was off, I noticed it when
mother handed him his tea. He
asked if there was any one that
could take him to the depot,
mother said Mr. Sullivan could,
Mary Sullivan and her father
were not at home, father said
he could when he got up a load
of grain, father said he was go-
ing after a stove and he could
ride with him then, father took
him off some time in the after-
noon, he brought a stove back,
never saw the man in the pris-
oner's box with my father, saw
him first at the jail.

Patrick Hayes. Reside in New
York, tend bar in a liquor store;
know Jerome Lavigne; this is
the man in court; have known
him since May or April, 1861;
first saw him in Albany. Saw
Lavigne in my place 26th of
August, 1865. Lent him $42, it
was before dinner; he asked me
for the money, saying he wanted
to go to Albany with some
friends of his fn an Artillery
regiment which was to be mus-
tered out there. I made a lit-
tle note of it (exhibiting note, a

small note of hand for $42 which
the signer agrees to pay within
30 days).

Katy Potter. "Was at the table
one day last summer when my
grandmother complained of the
meat, she said the meat smelt
bad; father said he bought it
early that morning; grandma
handed the piece to grandpa, he
said it was very nice and eat it.
Grandmother then got up and
left the table, father said if she
didn't eat any there would be
more left for us. Did not hear
father speak of grandmother as
a devil or use any such word,
heard nothing about giving any-
thing to take her away, Mr.
"Williams was at the table, it
was, I believe, before Ham Pot-
ter came to our house.

Cross-examined. I remember
distinctly all that took place on
that occasion, am sure nothing
more was said, and that I have
stated it exactly, grandma ate a
piece of potato and went away
from the table, she was pretty
angry, she said the meat didn't
smell good, she spoke in an ordi-
nary tone

IN REBUTTAL.

Avery B. Edwards. Reside at
Winooski Falls, was at Mr. Gris-
wold's house along the first of
the horse fair last fall; was
about the house and yard; a Mr.
Potter, Mr. Charles Potter's
brother, Mrs. Potter, Mr. "Wil-
kins, Mrs. Griswold and three or
four children, one of them a girl,
was there; was whittling while
there; have but three fingers on
my right hand; one of them re-
marked that he or she had never
noticed that before; I told them

I lost the finger since I first
knew them.

Cross-examined. This was
after Potter's arrest; did not
take dinner, or go into the
house; was there near an hour;
think it was Mrs. Potter spoke
to me about my finger.

William D. Munson (recalled).
Have seen the witness Hayes be-
fore, first saw him on the night
of 27th March, on sidewalk,
within four rods of the jail,
stumbling about the sidewalk

JOHN WARD. 571

and flourishing a bottle of gave his name as John "Williams,

liquor; arrested him and lodged At 7 o'clock the next morning he

him in jail. He was talking very was very sober and anxious to

loud at the time and was invit- get out; had about $3.50. Saw

ing the crowd to drink; staid in him drink twice from his bottle

jail until nine o'clock next morn- but don't know whether he

ing. He was confined in the feigned drunkenness; couldn't

same open jail with Lavigne but say whether any of the respond-

Lavigne was locked up in a cell. ent's counsel came to the jail

The cell grate openings were that afternoon. The counsel

about four inches across. La- came very often, especially Mr.

vigne and Hayes were together Ballard,
from 7 until 9 o'clock. Hayes

The Counsel on both sides addressed the jury:

THE JUDGE'S CHARGE.

Chief Justice Pierpont said that much time had already
been occupied in the trial, and that he should not long detain
the jury. The respondents Ward and Potter are indicted for
the murder of Mrs. Griswold. Though the indictment is
against them jointly, it will be competent for you to find one
guilty and the other innocent.

There is no question that a murder was committed. The
question is, was either or both of the respondents guilty of it.
It is conceded that Potter was not present at the deed. But it
is claimed that while Ward was the perpetrator, that Potter
was a participator in it.

The first question, and in a sense, the main one, is if Ward
was the perpetrator; if not, the prosecution fails also as to
Potter. This is solely a question of fact for the jury to de-
termine from the evidence. The testimony is fresh and has
been fully commented on.

In judging of the question of identity the jury must re-
member that identification of persons under such circum-
stances is commonly a matter of more or less uncertainty.
You must bring your best judgment to bear on all the cir-
cumstances, and decide the question of identity. Coming to
Hayes' testimony, if that is true the Government fails. The
question as to that is "is it reliable?" If not so — if the jury
find proof of a scheme to introduce false testimony, concocted

572 XIV. AMERICAN STATE TRIALS.

in jail between Hayes and Ward, it throws suspicion on the
latter, and on his defense. It will not be enough to establish
a probability of guilt. It must be established beyond a rea-
sonable doubt. There must be a moral certainty that satisfies
the judgment. To convict "Ward you must believe him guilty,
and believe it because it has been proved beyond a reasonable
doubt by the evidence in the case.

Next as to Potter. The Court has been asked to charge
that there has been no evidence connecting him with the mur-
der. That is a responsibility which the Court declines to
take. It is a question for you to settle.

The Court is also requested to charge that you would not
be justified in finding Potter guilty unless he was present and
abetting the act. He is indicted not as an accessory before or
after the act; but as a participator. You must consequently
find that he was a participator. To be such the Court charges
that it was not necessary he should have been present. If you
should find the act to be as charged, that Ward and Potter
devised a plan for the murder, in which each was to have a
part, and that Potter, in fulfilment of his part, removed the
family so that Ward should have the opportunity to commit
the act, it makes no difference whether he took them to a dis-
tance of 40 feet or 40 miles. He would be in such a case as
guilty as if he stood by and held the hands of the victim, so
that she could not resist. There is no evidence of any ar-
rangement between Ward and Potter previous to Ward's
appearance in Williston, and until such arrangement has been
shown no statements of Ward are evidence against Potter. The
fact that Ward was inquiring for Potter, on his way to Willis-
ton, is evidence only that he was the man who was at Potter's.
If he was, he was where a plan could have been formed. His
presence there and the talk about horses is all consistent with
innocence. But they could have then planned the murder;
the question is if they did so.

As to the question of inducement, it appears that Potter's
wife was the heir of Mrs. Griswold, and it is said this fur-
nished an inducement to the murder. This may be true to
a certain extent, but it is such an inducement as any man has

JOHN WARD. 573

to take the life of one of whom he is the heir. Few men
but have such an inducement, to take the life of somebody.
Yet murders from such inducements are the least frequent.
They are contrary to human affection, and such inducements
rarely induce murder.

In this case, the life of old Mrs. Griswold stood between
Potter and immediate possession of the property. Taking all
the circumstances, there seems to have been no great ill-will
or animosity between the Potters and Mrs. Griswold, and that
more on the old lady's part than on theirs. There is, on the
whole, little evidence that any arrangement was entered into
between the respondents. Whether there was or not rests
with you to determine from the facts. The evidence being
wholly circumstantial, great caution is necessary. The jury
must see if the chain of circumstances is perfect, for if a
single link is defective the chain is broken. As to Munson's
testimony, if you are satisfied that Potter's object was to
bribe him to pack a jury, such an act would be a great im-
propriety, and would show that he did not rely on his inno-
cence to protect him. If, on the other hand, all he desired
was to secure a fair trial, while it was improper for him to
offer the Sheriff money, it would not bear so much on his
guilt. How that was you must decide.

Gentlemen of the jury, you will now take the case and re-
turn such a verdict as your best judgment and your con-
sciences require, remembering that the respondents come be-
fore you under the legal presumption of innocence, until they
are proved to be guilty beyond a reasonable doubt.

THE VERDICT AND SENTENCE.

The Jury retired at a few minutes after 4, and at a quarter to 6

The Clerk said: "Gentlemen of the Jury, have you agreed upon
your verdict?"

The Foreman. We have.

The Clerk. Is the respondent, John Ward, guilty or not guilty.

The Foreman. Guilty.

The Clerk. Is the respondent, Charles H. Potter, guilty or not
guilty?

The Foreman. Not guilty.

574 XIV. AMERICAN STATE TRIALS.

The Court sentenced the prisoner to solitary confinement
in the State Prison at Windsor for one year and then to be
hanged on a day to be fixed by the Supreme court. In Jan-
uary 1867, his conviction was affirmed by the Supreme Court
and he was transferred from the prison at Burlington to the
State Prison. He here made several attempts by attempting
to bribe the Guards and by writing letters to outside friends
that were however intercepted by the authorities. In January
1868, the Supreme Court appointed March 20th as the day of
execution of the capital sentence but this was not communi-
cated to Ward until the second day of March. On March 19,
yielding to the entreaties of the Prison chaplain he wrote out
a lengthy confession.

THE CONFESSION.

The confession began by a statement which he said was hearsay
so far as he was concerned as he admitted to the effect that Ephraim
and Potter having determined to get rid of Mrs. Griswold on ac-
count of her ungovernable temper and having failed in their attempt
to have her placed in an insane asylum asked a man named Dis-
brow, who had come from New York to sell them counterfeit money,
if he knew of any one whom he could get to put an end to her. Disr
brow told him that he did know several whom he could get to do
it, but that it was possible that he could not lay his hand upon
one just then, but that he would see as soon as he came down to
New York. Disbrow then asked Potter what he was willing to give
to have the job done in good shape, and Potter told him that he
would give $300 cash down, and that the person who did it might
take all the valuables he could find in the house; these consisted,
as he said of about $300 worth of silver ware of different kinds, and
about $250 or $300 worth of jewelry and furs, belonging to the old
woman, making, all told, about $900. Disbrow promised to attend
to the business as soon as he got to New York, and they separated.

The confession then continues:

I was at this time stopping at the New England Hotel, corner of
Bayard street afid the Bowery, under the name of William Ward,
and one Sunday morning a man by the name of Edward H. Pease
whom I was acquainted with, called upon me accompanied by a
stranger, whom he introduced to me by the name of Charles H.
McComber and who told me that he would like to have me take a
trip with him through New Hampshire and the Eastern states. He
said it was worth about $1000 and that I must be sure to do it
alone; that the job was a burglary put up by an old lady's son-in-

JOHN WARD. 575

law for the purpose of vexing her. Gave me a letter of introduction
to a man named Charles H. Potter, Williston, Vermont and signed
by a man named John Disbrow. I found a man named Walter
Moore and he agreed to accompany me and whatever the affair
would bring to divide it equally between us. On Monday, 21st of
August, we started for Burlington, Vermont. On the route I told
Moore all I knew about the case and who I had got it from, show-
ing him the letter of introduction. We stopped the first night at
the Champlain House in Burlington and decided that Moore should
go to the place first and deliver the letter. Next morning went to
Potter's house and delivered the letter from Disbrow. Potter after-
wards told him that it would have been just the same if he had
given the letter to his wife as she was privy to everything and
was well acquainted with Disbrow. Potter unfolded the whole thing
to him, and asked him if he was ready to do it. Moore at first
refused to have anything to do with it, if blood was to be spilled,
alleging that he had been given to understand that it was nothing
but a burglary. Potter told him it was both. Potter invited him to
come and take dinner, which he did. After dinner, Potter, to im-
press upon him the ease with which the affair might be done, took
him into the main parts of the house, and showed him where all the
silverware was kept, and also the bureau in which the old lady kept
her jewelry and other finery. He also showed him how to get into
the house, and told him that all those closets would be left open for
him on the night that he would do the job, so that he might have no
trouble. Potter then took him to the barn and showed him a full
set of burglar's tools of all kinds, and told him to pick out any that
he wanted to use. Moore told him that he would give him his de-
cision about it the next day. Moore came back to Burlington and
told me all about what the job was, and asked me if we should do it
or not. I would not do it at all, and told him so, in so many words,
but he began to recount all that he had seen on the route, and about
the tools and Avhat all the stuff would bring, and how easy it all
could be done and so on, and ended by saying that Potter would
call and see him, the next morning, for his decision. I advised our
immediate return to New York. We found that we had only about
$12 between us and our hotel bill to pay out of that. This deter-
mined us to stay and see Potter in the morning. The next morning
Potter called to see us. I deemed it best to keep in the background
until all was done and then get the whole affair from Moore. After
talking about an hour they separated, Potter driving off in his wagon.
Potter had given him ten dollars to pay our way for the present and
also made an appointment to meet him the next Saturday morning
at the hotel in Winooski. The conditions of the affair were that
Moore should have $300 down and all the silver, jewelry and other
articles which he wanted to carry away from the house, and in lieu
of the silver, if he did not take it. Potter was to pay him $300 more
as he computed it to be worth that amount. Potter was also to see
that there was nobody in the house at the time except the old wom-
an, all the rest were to be away. He would also file the latch of the

576 XIV- AMERICAN STATE TRIALS.

back door in such a way that by taking hold of the door on the out-
side, it could be lifted over the latch inside. The closets were all to
be left open, and he was to take out what tools were necessary, and
leave them where we could find them. He also left a large black
bag, so that it could be used in carrying away the articles we took.
When he saw Moore on the Saturday following he would have the
money ready, and give him his final directions. I advised him to
throw up the whole thing and start at once for home. But he de-
murred and said it was so easy a thing that he hated to do so, say-
ing that if he got this stake it would carry him to South America,
where he had for a long time been trying to go. I then asked him
for money enough to pay my own fare home and that he might do
the job alone and have all that he could get for himself alone. He
would not do this, saying that as we both had come together that
I ought to stay and assist him as it was I who first proposed it to
him and that he did not consider it manly in me to back out when
we were on the eve of doing it. This taunt irritated me and I de-
termined to show I was as good as he. But I told him I would not
take any hand in cutting or killing anybody; this he might rely
upon. Next morning Potter came and took Moore with him and
they went to the blacksmith shop, and after the wagon was repaired
he and Moore got in and drove off together. I went to the depot and
waited until Moore rejoined me. He then told me that everything
was arranged, that he (P.) had it all fixed, so that the coast would
be clear on the Sunday night following. Himself and his family
would then be away on a visit, and the old man G. would be away
on business and there would be nobody at the house but the old
lady and a boy. Next morning P. came and saw Moore at the Junc-
tion, and gave him $100 and a revolver, [the same one now in the
possession of the District Attorney at Burlington], and a bottle of
chloroform, [now in Englesby's hands also.] The reason he gave
for not giving the whole amount of money to Moore was, that he
wanted some guarantee that Moore would not beat him out of it, and
as Moore had no guarantee to give, except his word, he (P.) deter-
mined to keep the money in his own hands until the work was done,
and that he would then send it to any address Moore might name,
rightly judging that M. would not give up the job after it had gone
so far. Moore was mad, but he could not help himself, and had to
put up with it. I again advised him to drop the whole
thing, as I did not believe the other party would keep faith with
him after the affair ivas done. I saw it was no use to talk to him
about giving it up, so I said no more about it. Some persons who
will read these lines, after I am in my grave, will say, why did he
not stop there, and have nothing more to do with the transaction,
when he saw what kind of a man Potter was? Why did he not leave
the affair to his associate, and get home the best way he could?
Why did he not speak out and tell us all this, at the time of his
arrest? Why not do so, at the time of his trial? Why not tell
about this, since his confinement in Windsor? To persons who
talk thus, I will say that they know but very little of the passions

JOHN WARD. 577

of the human heart. It is very easy for a person sitting by his
comfortable fire, with all the comforts and luxuries of life around
him, to talk, and ask why do men do this, why do they do that,
when, at the same time, if they themselves were exposed to the
same temptation, they would sink under it, as soon as those whom
they criticise. But to proceed with my story.

Moore and myself went back to the hotel, along toward night,
and got supper, each one appearing as a total stranger to the other.
After supper, I paid my bill to Mr. Fish, the person in charge of the
house, and left, making an appointment to meet Moore at the cov-
ered bridge after nightfall. He came about nine o'clock, and we
proceeded together to Potter's house. Just before getting there M.
stopped, and struck a light, and went to an old hollow log by the
roadside, and inserting his hand, drew out a small iron bar about
two feet long and an inch thick (technically called a "Jimmy"), and
some pieces of cord, all of which he handed to me to carry. We
then went on to P.'s house, and found it all dark and silent. We
walked around the house for some time, until we supposed it to be
about 1 o'clock; we then proposed to enter the house.

While coming up the road, I had told M. that I would have noth-
ing to do with hurting anybody in the house, and that he might de-
pend on it. He said he did not want me to; that he would do all
that part of the work himself; but that if the person should over-
power him in the struggle, he would call on me to assist him; this
I promised to do. We then went and fastened the latch of a door
leading up stairs from the outside to a room in which the farm boy
was sleeping. — We then turned to the door leading into the back of
the house. I entered first, with the "Jimmy" in my hand. Moore
followed close behind me with a "billy" [The same one now in
Englesby's hands.] in his hand, rea'dy for action. I then passed
to the door leading into the front room, and tried to open it, but
found it fast. I heard a door open in another direction, and by the
starlight, I saw an object enter the room, and saw it was a woman
by the drapery. Moore at once sprang forward and grappled with
her, and commenced striking her with his "billy," but nearly all the
blows missed, and she continued to scream louder than ever. Moore
then grappled with her and threw her down, and in falling they
struck the stove and knocked something off from it. This the old
woman caught and struck Moore on the head with it, cutting him
severely over the eye. Moore was then holding her by the throat
to stop her screaming, but when he was hit, he called to me to
come and hold her hand; I stepped forward and did so. Moore then
got hold of his "billy" again, and struck her on the head several
hard blows. He then took a knife from his pocket, and cut her
with it, and in doing so broke it. I kept hold of the hand until I
felt it relax, and then dropped it.

At that moment, I would have given all I had ever seen to be
out of that cursed house. I started to go out by the way we came
in, but Moore divined my intention, and put out his hand and
stopped me, saying that it was all over now, and that he wanted

578 XIV- AMERICAN STATE TRIALS.

me to bind up his head, as he was all cut. I then struck a match,
and looked around, and saw a candle on a table at one side of the
room. I stepped toward it, but my light went out, and I slipped in
a pool of blood on the floor, which immediately saturated my clothes
to the skin. This is the full share that I took in that deed of blood
that night. I did not strike or cut that old woman in any manner.
I did nothing but hold her hand, so she could not strike Moore; if
this is Murder, then I am a Murderer in the sight of God and man.
I, however, consider that I am not, as I used no violence whatever
towards her, nor did I strike her, during the whole transaction.
Since that night, I have never had my conscience trouble me in any
particular, because I considered that my hand was not reddened by
anybody's blood; this it is, which has supported me in all the trials
through which I have passed.

After we had got a light, I looked around the room and saw the
corpse lying in a pool of blood in the middle of the floor. The first
thing I did, was, to get some cloth and bind up Moore's head as well
as I could; then we took the body between us, and carried it to the
place where it was found. I asked Moore the meaning of this move,
and he told me that Potter had requested him to do it; we then
came back to the house and fastened the door. We then forced the
door leading into the front room, and went to the silver closet, but
it proved to be nearly all plated ware, so we did not take it; all
there was that was good was about a dozen spoons, a small pitcher
and finger bowl. We then forced our way into the closet, where we
expected to find the jewelry and other valuables, but we could not
find a single article, although we ransacked every part of the
house for them. We then packed our bag with silks and other
things, and took two pieces of the plated ware to fill up the bag.
In carrying the old woman out of the house, I had got my coat and
shirt sleeves saturated with blood, and I knew it would show in the
daytime, so I looked around for one to replace it, but could find
nothing only an overcoat much too large for me, but I was obliged
to take it. Moore had got hardly any blood on him except on his
knees, which I wondered at much as he was on the floor all the time
of the scuffle. After we had got all of any value that we could find,
we prepared to leave the house, and, after closing all the windows
carefully, we did so. We came first to the main road about two
miles from the house, and then came directly to Burlington on foot,
which place we reached about daylight. We both went direct to the
Howard House, and washed ourselves, and then went to the Dye-
house, just behind the hotel, and washed all the blood from our
pantaloons. When the stores were opened, Moore went and got
each of us a cap and some other articles, and we then went to the
Lake House and got breakfast, and afterwards went to the Depot
and stayed there until the first train went out to Rutland. Moore de-
termined to go by steamboat from Burlington to Whitehall, and I by
rail, by way of Rutland; we were to meet at Greenbush, opposite
Albany, and then proceed together to New York.

While waiting for the train to start, I saw the messenger, named

JOHN WARD. 579

Kelly, come and go into the car, and as I had often seen him in New
York, I determined to try and get into his car instead of the regular
passenger car, as I would then be screened from observation, which
the large coat I had on, subjected me to. I then came forward, and
introduced myself to Kelly, and told him what I wanted, and gave
the names of several men as references, whom he knew in New
York, among them the name of Edward H. Pease, who worked for
the same Company as himself. He did not like to let me get into
his car at Burlington, as it was against the regulations of the Com-
pany, but told me that I might get in at Vergennes, the first stopping
place, and when the train reached there I did so, and rode with him
to West Rutland. There I left his car, and got on to another train,
and came through to Troy, N. Y., direct.

While in the car with Kelly, he began to question me as to my
reason for wishing to ride with him instead of in the regular pas-
senger car, and I then told him some such a story as is embodied in
his testimony, given on oath at my trial in April, 1866, and although
there are some sentences in it that I never uttered, still it is, in the
main, correct. Moore and myself met in Greenbush, as per appoint-
ment, and proceeded together to New York. The next day we dis-
posed of all the things we had brought with us, except the silver, —
that we kept. What we sold, brought us about $25 apiece in the
pawn shops.

Things went on this manner some two weeks, and during that
time I had moved from my hotel to private lodgings. One day I
went to see Moore down town, and he proposed that I should go up
and see Potter on the subject of gettting the remainder of the
money due us, and let him know at the same time what participa-
tion I had in the affair. Moore would have gone himself only for
fear of recognition, from being seen so much with Potter previously,
while I would be almost a total stranger to everyone in the neigh-
borhood, and especially so to Potter himself. Moore and myself
wore our beards about alike, and he advised me before going to have
my face shaved clean; I did so a couple of days before I started.
About this time our money began to get low, and it became neces-
sary to dispose of the silver, in order to get money for my trip.
We accordingly disposed of it at Simpson's, in the Bowery, and at
Coon's in 7th Avenue. It brought about $40, which we divided
equally. Moore then gave me the bottle of chloroform and the re-
volver, given to him by Potter, and also an eye patch, which Moore
had got hold of in the scuffle with the old woman; all of which I
was to deliver to Potter. I was to insist on Potter making good the
amount of money he said the jewelry was worth, which we could
not find, and the full amount of the silver which turned out to be
nothing but plated ware, deducting of course the amount we had
taken away. This would make the whole amount for me to collect
about $800.

I started on the evening of the 18th of September for Burlington,
and reached Troy at night. When I got to the Vermont Central De-
pot at Charlotte, and while waiting for the train to start, I saw a

580 XTV. AMERICAN STATE TRIALS.

man pass by me, as I was walking in the shed close to the train. The
train was so crowded that there was hardly standing room in the
cars, and I, with several others, took our seats upon the platform.
When the train reached Winooski, I was arrested by the man whom
I noticed looking at me on the train, and eventually turned out to
be Flanagan. Potter was arrested the same night, a joint indict-
ment of Potter and myself followed, after that, a trial; Potter ac-
quitted, I convicted. This is what the public know of the case, but
there was an under current of which the public know nothing, and
which I propose to make as clear as possible in the few brief mo-
ments that are left me. [I have forgotten to mention, that at the
time I was arrested, all of the articles that I was to give to Potter
were taken from me by the officer, with the exception of a little note
of explanation from Moore, which I had concealed in a pencil case.]

A day or two after my arrest, I found an opportunity to send this
note to Potter, and a little while after, he came to a small hole that
connected the two rooms in which we were confined, and talked for
some time with me, and I then found out how the situation was.
He told me that he had been arrested on account of what was done,
but, as there was no evidence against him they were obliged to let
him go; that he had got everything fixed right now, and that he
intended to have gone to New York the week following, and settle
everything with Moore, only for being arrested now. He then
asked me if I had any money, and I told him I had not. He then
told me to send my lawyer, Mr. Ballard, up to him the first time he
came to see me, and that he would send me some. I did so, and
he sent me two hundred dollars by Mr. Ballard. Part of this sum
I had Mr. Ballard send to New York, the remainder I kept for my
own use. He also told me to keep still and quiet, and to be sure
not to talk to anybody about the case, only my counsel, and no more
than I could help to them; that there was no evidence at all that
would convict us, and that he would stand a friend to me long as
he had a dollar. These were very good words, and if he had carried
them out, all would have been well, but he failed in the most essen-
tial point; that is, the dollars.

These are my reasons for not speaking out at my trial; these are
my reasons for not speaking after my trial; these are my reasons
for not speaking since I came to Windsor; these and many others
are the reasons why I have attended to Charles H. Potter's interest
instead of my own; these are the reasons that have kept my tongue
tied for two years and six months. Even here in Windsor, I still
thought he would still do something for me, in some way or other;
but he has not, he has not even tried to do anything for me. I have
occupied a loathsome cell, while he has been breathing the free air
of Heaven. I have kept silence, until silence ceases to be a virtue.
He and old Griswold have been living in plenty, and having every-
thing at their command, while at the same time they are, both of
them, more guilty of this terrible crime than I, or in fact the man
who drove the knife to the old lady's heart. He, backed up by Gris-
wold's gold, can defy the law, but retribution will come, sooner or

JOHN WARD. 58

later, and then he will know how he has made others suffer. To-
morrow I go to the gallows, while he is living in luxury, but I con-
sider myself the happier man of the two; my conscience does not
trouble me, and, although my bed is coarse, I sleep sounder than
he. He and his myrmidons have kept me quiet by stuffing me with
good words and promises, which they never intended to fulfill.
They have succeeded in keeping me quiet, until the little evidence
I had against them is of no consequence to the authorities, and
now they can laugh at me. They will laugh at this statement,
coming, as it does, from a condemned convict in a State Prison,
written by a man with a halter around his neck, but God, in whose
presence I am soon to stand, knows whether I tell the truth or no.
He must be the arbiter of our fate. I have sought to conceal nothing,
but there are many incidents that may possibly have slipped my mem-
ory in this hasty sketch; they might be trifling in themselves, but,
as links in the great chain, they might be powerful.

I will now conclude. It was my intention to offer a few remarks
on some of the witnesses at my trial, but I have not time, the hours
are short, and I must close. I leave him and all others to the mercy
of our Common Judge, at whose bar we must all stand at last.

THE EXECUTION.

March 20.

The following account of the execution is taken from the
Chaplain's book.

At a few minutes past one o'clock Deputy Sheriff Stimson and his
aids appeared at the cell and asked him if he was ready. He said with
a loud sigh, "Yes." I stepped out and left him alone for a moment;
when he came out and was taken by the two assistants to be led in
the solemn procession, headed by the Deputy Sheriff and Chaplain,
to the black scaffold and the fatal drop and followed by the legal
witnesses of the execution. He mounted the scaffold, took his place
on the drop with amazing calmness and firmness of step, but with
frequent sighs, long drawn and deep; after a prayer by the Chap-
lain, the death warrant was read by Sheriff Stimson.

He was then asked if he had anything to say. "Ward said with
remarkable clearness, "that he never struck the old lady a blow;
that he had made a full statement of his participation in the
deed, which was in the hands of the Chaplain; that he solemnly
averred, as in the presence of his Maker, what he had said was the
truth, and nothing but the truth." The executioners then prepared
to confine his limbs, upon which, as he yielded his hands to them,
he looked toward me and placed in my hand his handkerchief.
After his limbs were fastened, he shook hands with the Sheriff, Mr.
Flanagan, and the Chaplain, Mr. Pollard and Mr. Stone, and Rev.
Mr. Pierce, and said, "Good-bye, all," when the black cap was drawn

582 XIV- AMERICAN STATE TRIALS.

over his eyes. The Sheriff then stepped forward and said, "The
time is now come for the extreme penalty of the law to be executed
on you, John Ward, alias Jerome Lavigne, and may God have mercy
on your soul." His foot then touched the spring, and in that instant
the culprit was in eternity. A shudder thrilled the spectators, but
scarcely a motion of the victim's body was discoverable. In five
minutes pulsation ceased, and in twenty he was dead. In thirty-
minutes the body was taken from the rope and placed in the coffin.
A crowd passed around to see the corpse. As the coffin was about
to be closed, I stepped forward and examined the body, and asked
Dr. Stiles if the man was dead. He said, "I pronounce him dead."
The remains were then borne to the grave within the yard, and
committed to the earth, with the usual religious form. Application
was made for the body, for surgical purposes, but the law is explicit
in regard to the disposition of the body, and is deposited where it
cannot easily be removed, without permission. Thus closes one of
the saddest scenes of my life.

THE TRIAL OF JOSEPH NEET AND OTHERS

FOR SABBATH BREAKING, LEXINGTON,

MISSOURI, 1899.

THE NARRATIVE.

One Sunday afternoon in the summer of the year 1899, two
base ball clubs, one composed of white and the other of colored
men, the one from Kansas City, the other from the City of
Lexington, were engaged in a game of base ball in an en-
closed park just outside the latter place, when they were
arrested together with the umpire and the ticket sellers at
the gates. A good many people had paid twenty-five cents
each to get into the grounds and many more were watching
it from the hills outside when it was thus interrupted before
three innings had been played.

A few days later the players and officials to the number
of 21 were prosecuted in the Criminal Court of Lexington.
The information (which in Missouri may take the place
of an indictment) was brought under the Sunday law of the
state which in one section prohibits the doing of ''work and
labor" and in another prohibits "horse racing, cockfighting
or playing at cards or games of any kind on the first day of
the week, commonly called Sunday." It had one count
charging the men with being engaged in "work and labor"
and another with playing a "game" on the previous Sunday
afternoon.

But the only witness for the State who testified as to the
first count declared that he did not consider playing base-ball
work but rather pleasure, so the judge told the jury that
they could not convict on that count but that he thought
they were clearly playing a game within the law. So the
jury brought in a verdict of guilty and the twenty-one were
fined. Most of them paid at once, but when Joseph Neet

(583)

584 XIV. AMERICAN STATE TRIALS.

refused to do so he was lodged in jail by the Sheriff. But
the Supreme Court granted him a habeas corpus and after
hearing his lawyers ordered him set free. That tribunal de-
clared that the words "games of any kind" in the statute
meant games of an immoral tendency like horseracing, cock-
fighting and card games played for money, and that to extend
these words in the way the prosecution wished them extended
would make criminal "every game that ever was or ever will
be invented, no matter whether it was harmless, promotive of
physical or mental development or deleterious to both. It
would prevent games of chess, backgammon, jacks, authors,
proverbs, faro, keno and poker alike. Such a construction
would curtail many of the pleasures of many of our people,
without elevating them or improving their moral tone." And
it also pointed out that this statute was passed in 1835 at
which date the game of base-ball was unknown, and could not
therefore have been in the minds of the lawmakers.

THE TRIAL.1

In the Criminal Court of Lafayette County, Lexington,
Missouri, June, 1899.
Hon. John A. Rich,2 Judge.

June 10.

By an information (which in Missouri may take the place
of an indictment) Joseph Neet and twenty other persons
were charged with the crime of Sabbath breaking under the
statutes of the State which provide :

i Bibliography. "No. 10108, ex parte Jos. Neet, petitioner vs. Jno.
A. Fulkerson, Respondent. Habeas Corpus, Wm. Aull, Attorney for
Petitioner and filed April 3, 1900. Jno. R. Green, Clerk."

"In the Supreme Court of Missouri, Court in banc April term,
1900; Ex parte Jos. Neete; Edward C. Crow, Attorney Gen. Clarence
Vivion of Counsel."

"In the Supreme Court of Missouri, April Term, 1900. Court in
banc; Ex parte Jos. Neet; Statement and brief for petitioner; John
S. Blackwell & Son and William Aull for petitioner." "Missouri
Supreme Court Reports, Vol. 157, 1900."

2 Rich, John A. Born Liberty, Mo., 1855; Grad. Cent. Coll. Pros.
Atty, Saline Co. Judge Criminal Court, 15th Circuit, 1898-1920.

JOSEPH NEET AND OTHERS. 585

Sec. 2240. Every person who shall either labor himself or compel
or permit his apprentice or servant or any other person under his
charge or control, to labor or perform any work other than the
household offices of daily necessity, or other works of necessity or
charity, or who shall be guilty of hunting game or shooting on the
first day of the week, commonly called Sunday, shall be guilty of a
misdemeanor and fined not exceeding fifty dollars.

Sec. 2241. The last section shall not extend to any person who is
a member of a religious society by whom any other than the first
day of the week is observed as a Sabbath, nor to prohibit any ferry-
man from crossing passengers on any day of the week.

Sec. 2242. Every person who shall be convicted of horseracing,
cockfighting or playing at cards or games of any kind, on the first
day of the week, commonly called Sunday, shall be deemed guilty
of a misdemeanor and fined not exceeding fifty dollars.

Sec. 2243. Every person who shall expose to sale any goods,
wares or merchandise or shall keep open any ale or porter house,
grocery or tippling shop, or shall sell or retail any fermented or
distilled liquor on the first day of the week, commonly called Sun-
day, shall on conviction be deemed guilty of a misdemeanor and
fined not exceeding fifty dollars.

Sec. 2244. The last section shall not be construed to prevent the
sale of any drugs or medicines or articles of immediate necessity.

The first count charged that R. Vaughn, Joseph Neet, Wm.
Davis, John Coates, Walter Lindsay, E. Hayden, Hy. Hicks,
John Lindsay, Frank Lindsay, Al. Rouse, James Lindsay,
Matthew Mady, Fred Weeks, Henry Rhode, Roy St. John,
Harry Kurder, Alex. Hanson, Rich Kenny, Norton Colman,
Ira Harman and Frank Wilson on June 4, 1899 at the
County of Lafayette and State of Missouri "did then and
there unlawfully play a game of base-ball on the first day of
the week commonly called Sunday against the peace and
dignity of the State."

The second count charged that the same persons, at the
same time and place did then and there unlawfully engage
in certain labor and work, to wit : by then and there laboring
and working at a game of ball, commonly called base ball,
for certain money and certain per cents, of the receipts so
then and there taken in, by then and there charging an ad-
mission fee of twenty-five cents for each one who attended

586 XIV. AMERICAN STATE TRIALS.

the said game, in which said employment, vocation, labor and
work, they were then and there found performing on the
first day of the week, commonly called Sunday, the said
labor and work and employment not being then and there
a household office of daily necessity or work of necessity or
charity, but the said work, labor and employment was then
and there of an immoral tendency against the public morals
and against the peace and dignity of the State.

The third count charged that the same persons "on the
first day of the week, commonly called Sunday, did then and
there, at and near to a public highway leading from the
city of Lexington to Myrick, in said county of Lafayette,
and near to and in plain view of a number of residents and in-
habitants and families of this, the said county of Lafayette,
meet and assemble themselves together for an unlawful pur-
pose, and did then and there divide off into two contending
sides, and unlawfully, openly, notoriously and shamefully
play at a game of ball, commonly called base ball, for hire,
money and certain per cents, of the receipts so taken in then
and there on the result of said game, which sum of money so
taken in by said receipts was a large amount, to wit: about
one hundred dollars, wherein did then and there assemble
a large number of people, to wit : about five hundred, to wit-
ness the said game by paying then and there an admission
fee of twenty-five cents for each one, then and there thereby
desecrating the Sabbath, greatly to the annoyance and dis-
turbance of a portion of the inhabitants of this State, and
against public morals and contrary to law; against the peace
and dignity of the State."

All of the prisoners pleaded Not Guilty.

Clarence Vivion,3 Prosecuting Attorney, for the State;

sVmoN, Clarence.. Born Winchester, Ky.. 1855; Removed with
his parents to Mexico, Mo. 1869 where he was educated and taught
school for some years. Studied law and was admitted to bar 1882,
and began practice at Higginsville, Mo. Pros. Atty. Removed to
Cal. 1919.

JOSEPH NEET AND OTHERS.

587

William Aull* John M. Price and John S. Blackwell5 for the
Prisoners.

The following Jurors were empaneled and sworn:

George Chamblin, James Dinwiddie, Albert Evans, P. D. Williams,
John Kohlston, Frank Becker, C. Q. Kinkead, C. C. Ellmaker, Wil-
liam W. Higgins, James W. Winn, P. H. Koppenbrink. and John
Barnett.

THE EVIDENCE.

George Clark. Live in Lexing-
ton. Sunday afternoon I went
down to the park where they
play ball, southwest of town
here, about a half a mile, I
guess, at the side of the road
that goes from here to Welling-
ton. There is some small resi-
dences along there, don't know
how many, I think three or four,
something like that, occupied by
the citizens of the county I
think. These defendants here,
none of them did I know from
Kansas City at that time. Only
one I knew that was playing
with them was Mr. Neet; I knew
him by him being from here.
The parties living here in Lex-
ington, I knew most of them;
Al Rouse and several I recog-
nized. These defendants from
Kansas City who are in the
court room I recognize them as
being down there as the con-
tending nine on Sunday. I seen
them playing ball; they call it
base-ball; don't know much
about it myself. Did not see

anyone pay any money at the
gate. I gave half a dollar for
myself and another man. Who
the gatekeeper was I could not
tell, I did not notice, a black
man I think. I think about one
hundred and fifty or two hun-
dred, something like that were
inside. There seemed to be a
great many people on the side of
the hill outside. Am a saloon
proprietor. Saturday night Al
Rouse and two or three other
colored men in my place were
counting up and each one was
giving in the amount of money
he had collected after the ball
game was over. They owed me
ten dollars and they paid me
about ten dollars.

Cross-examined. . The nearest
residence must be two hundred
feet, a small cottage, do not
know whether white or colored
people live there. Did not notice
driving on that road except those
going to and from the game.
Have seen a game of base-ball
played but am not much posted.

* Aull, William. Born Lexington, Mo., 1857; Grad. Univ. of Va.
1882; admitted to bar and practiced at Lexington, 1882-1920. Pros.
Atty. 1890-1897.

s Blackwell, John Samuel. (1832-1908.) Born Anderson Co.,
Ky. Removed to California, 1850 where he was admitted to the bar,
afterward removed to Nevada and from there to Missouri in 1865.
Pros. Atty. Lafayette Co., 1872-1886, Delegate to Nat. Rep. Con. 1892.

588

XIV. AMERICAN STATE TRIALS.

Do not know what constitutes a
game of base-ball, how many in-
nings.

To Mr. Vivion. How long had
they played before they were
arrested by the officers? I don't
know exactly, would hardly
think it was over twenty min-
utes. The umpire was a stranger
to me, he was a white man. As
regards to the players, a colored
team was on one side and a
white team on the other. The
gate-keeper was colored, I don't
know his name.

To Mr. Aull. These parties
being attracted there, were there
to see the game, I would say
from the appearance of them. I
was there to see it too. Can't
say that any of these defendants
had anything to do with that
gate entrance fee. I walked to
the gate and gave half a dollar
for myself and the other gentle-
man and walked in, that is all.

Charles A. Bex. Am consta-
ble of Lexington township; re-
member a game of base-ball be-
ing played here between some
white men and some colored
men on Saturday, the 3rd day
of June and of them playing on
Sunday, the following day, down
here close to the station of My-
rick in Howard's park. Went
there with Mr. Oscar Thomas
and Mr. Jim Good, the deputy
sheriff. At the gate there was
Al Rouse and some white man
from Kansas City, don't know
his name. Several people came
there and paid a quarter repeat-
edly to Rouse and he dropped
it in a little grip sack they had
there and the people went on in.
There were two or three hundred
on the inside, I suppose; on the
outside a big crowd. That ball
park has no fence to prevent

outsiders from looking in there.
Inside of the railroad fence they
have a canvas stretched along
about eight feet high, I suppose,
that goes down about two feet
from the ground. From the hill-
side and on the railroad and the
houses up there you can look
right over this canvas. There is
five houses there, right close
there. I went in about fifteen
minutes before Sheriff Fulker-
son came and they just played
once while I was there inside.
These men are the ones we
brought up town, our own town
boys here; our colored town boys.
They divided into two sides.
When I opened Al Rouse's grip
sack and looked into it there
must have been fifteen or twenty
dollars there. Did not see the
other party who - took in the
money; don't know how much
he had. They came to me and
asked me if they could play ball
on Sunday. Jim Lindsay and
another and I told them I would
see Mr. Vivion; seen Mr. Vivion
and Mr. Vivion said no, sir, and
I went and told them. I was up
here in Mr. Clark's saloon on
Saturday. I was not in the sa-
loon on Sunday. We were talk-
ing about the game and they
said it was a shame they could
not play ball on Sunday; they
said they could make a right
nice little stake. I asked them
what could be made out of it.
I understood them to say they
would get sixty per cent of the
money if they beat. How many
were playing I can't tell. These
white men and darkies were
there playing ball, divided off
into two sides, the whites
against the blacks. This white
team Jim Lindsay told me it
came from Kansas City. Rouse

JOSEPH NEET AND OTHERS.

589

is a colored man, he took in the
money at the gate. The white
man was with him, I don't know
his name, for he was arrested
that evening.

Cross-examined. How long
has this park been used for base-
ball? I don't know, they played
several games there last year
but none on Sunday. Do not
know what became of the gate
receipts. Never saw any of these
parties that played ball in pos-
session of any of the gate re-
ceipts. In the satchel Al Rouse
had saw dollars and quarters
and dimes and nickels and half
dollars; fifteen or twenty dol-
lars I judge.

To Mr. Vivion. There were
more outside the park than
there were in; lots of little folks
down there, children black and
white and lots of grown people
up there, inside and out. I know
that they played half of one in-
ning. The white boys were
playing when I got there and
the colored boys shut them out
and the people that was stand-
ing around there yelled and hal-
lowed about it because they shut
them out.

To Mr. Anil. I did not arrest
the people that did the yelling;
did not see any of them arrested.

John A. Fulkerson. Am the
sheriff of Lafayette county. I
arrested the defendants here. I
went down to the ball grounds
near Myrick, 100 or 200 feet
from the road, I guess. Ap-
proached the ground; they were
pitching a ball from one to
the other and a player was
batting and they had some men
out in the field; don't know
whether they called that playing
or just called it practicing. I
came back to Lexington to Mr.

Vivion's office and got a warrant,
went back to the ball grounds
and arrested twenty-one. They
were playing base-ball; it was
either the first half or the last
half of the third inning when I
stopped it. There was a great
many people there in seats on
the south side of the grounds, a
great many standing around and
a great many on the outside
and a great many setting along
the railroad and on the hills
there and there was a great
many in wagons and buggies.
Heard yells and some cheering
as I got to the houses. I went
in at the gate where the vehicles
went in and saw people going
in at a smaller gate. Ed Hay-
den had a small leather satchel
with a strap around his neck
and it hung in front of him
open. Noticed a little money in
it; I did not pay any particular
attention to how much. Arrest-
ed the boys on that Sunday and
brought them up town.

Cross-examined. Nine innings
constitute a game of base-ball.
The first time I went they were
not playing they were practicing.
There was a wire fence around
part of the park or around all
and on two sides there was a
canvas stretched, on the east a
large wire netting to catch the
ball. That canvas is to keep
the outsiders out.

Isa Oratz. Am a merchant
here, was at this game of base-
ball last Sunday at half past
one. Understand the game of
base-ball. It is not called a game
until there is five innings played.
There are nine on each side
each holding different positions.
I don't know the umpire's name,
he was a stranger to me. The
nine white were on one side and

590

XIV. AMERICAN STATE TRIALS.

the negroes on the other. I was in
a hack and handed somebody the
money to hand to them. In the
hack with me were eight. Before
they were arrested one side had
two innings and the other one.
That was an inning and a half.
These white boys were from
Kansas City, they told me they
were going to play Sunday. How
many people were there? I
would judge about four hundred;
on the hillside about as many or
probably more. The playing of
the game of base-ball is not hard
work. I consider it pleasure.
The pitcher throws the ball until
the man is out or has three
strikes and is out. You keep
up that work throwing the ball
for nine innings. The catcher, his
duties and work is to catch the
ball the same time as the pitch-
er. The short-stop, his work and
labor is to stop the ball and
throw it and put the man out,
and the first baseman has to act
there in his position and the
others have to handle their own
position.

Cross-examined. To consti-
tute the game five innings have
to be played. They started in
to play a game of base-ball and
before they got through with the
game they were arrested. The
parties that were on the inside
of the enclosure they were there
to see the game; I went there
to witness the game. We were
not atttracted there by anything
except the sport belonging to the
game of baseball. When there
was a play made by a party
sometimes the friends of the
party making the play would ap-
plaud the play; that is nothing
unusual in the game of base-ball.
When the opposite players
would make a brilliant play or a

play that struck the fancy of
the crowd they would applaud.
The people that were down
there to witness that game of
ball were there to witness the
sport of the game were they
not? Yes sir. You could not
see any difference in the play-
ing of the game as far as it
went from any other game of
base-ball? No, sir. Now that
ground, Mr. Gratz, has been used
for an indefinite number of
years, has it not, as a baseball
ground? I don't know. I have
only been here a little over a
year but ever since I have been
here the last two summers it
has. It is the unbroken custom
to have an entrance fee paid for
going into the grounds at a base-
ball game. Attended a great
many games up here at the
Wentworth Academy; have um-
pired a great many of those
games. This game was played
outside of the limits of the city
of Lexington and most all the
people that were there witness-
ing that game were people from
the city of Lexington. They
could not see the game from
their residences or the streets
of Lexington. Don't know
whether they understood the
game or not.

James Good. Am a resident
of Lexington. These boys were
there playing this game and the
sheriff and Oscar Thomas went
down and arrested them. Do not
know what the admission was;
did not see any money paid to
any one. The sheriff rode in at
the lower gate and I went in at
the upper gate. Saw Al Rouse,
did not see any money; he had
the grip, the other man Hay-
den, I did not see. I went out

JOSEPH NEET AND OTHERS. 591

that gate but I don't know who for, they were not playing for

was there. no division whatever. I got that

„ . T all from outsiders ; not any of

George Hagood. Live in Lex- ^ club were pregent when the

ington; know the colored boys outsiders told mGj beCause I was

that played base-ball there last on my way home some time

Sunday. They live here in Lex- after the arrest and x was in

ington; was present at the 01d Town and I don't know

game last Sunday; saw them where they were. They played

start to play, an inning and a an inning and a half before

half. Understood the money they were arrested.

was to go to the winning club; The Prisoners' Counsel called no

that was what they were playing witnesses.

THE CHAKGE OF THE COURT.

Judge Rich told the Jury that the only count in the information
on which the evidence would sustain a verdict of guilty was the
first count. But if you believe from the evidence that at any time
within one year next before the filing of the information that any
of the persons named in the information, at the county of Lafay-
ette and State of Missouri, played at a game of baseball on Sunday,
then you will find them guilty as charged in the first count of
the indictment and assess their punishment at a fine not to exceed
fifty dollars, and are further instructed that it is immaterial in this
case how many innings had been played.

If upon the whole case you have a reasonable doubt of the guilt
of any of them you will acquit such one, but to authorize an acquit-
tal upon the ground of doubt alone it must be a reasonable or sub-
stantial doubt of guilt based upon and arising out of a consideration
of all the evidence in the case, not a mere possibility that the de-
fendant may be innocent. In order to convict, the state is not re-
quired to prove them guilty by direct and positive evidence, but if
from all the facts and circumstances in evidence you believe them
guilty under the instructions of the court then it is your duty to
convict, even though the evidence be not positive and direct.

THE SPEECHES TO THE JURY.

Mr. Aull. Gentlemen : The Judge has told you that there
has been no evidence presented to you to show that these
defendants are guilty of any violation of the statute as to
working on Sunday, so the only question for you to decide
is whether playing a game of baseball an athletic game or
sport is a crime under the laws of this state. And I am
sure I shall be able to convince you that it is not. It cannot
be a crime unless it is so by the common law or by some

592 XIV. AMERICAN STATE TRIALS.

state statute. Sunday laws as they are called go back a long
way into history. The first I think was three hundred years
after the birth of Christ when the Roman Emperor Con-
stantine issued an edict which in those times made law that
all work should cease on Sunday. Later the Roman Code
prohibited the prosecution of law suits and all business on
that day. Then when the Church became as powerful as any
King it promulgated holding a law that pleas should not be
made nor cases adjudged. These Church canons became
part of the English Common law and every lawyer knows
the legal maxim Dies Dominicus non est Juridicus, which in
English is that the Lord's Day is not a day on which a legal
Court can be held or legal proceedings begun. Now this is
all that the Common Law ever prohibited on Sunday. It
never prohibited work and labor on that day nor games
either. Indeed as late as the Seventeenth century King
James of England wrote a book advising his subjects what
were the best games to play on that day.

But some years later the English Parliament passed a Sun-
day law making it a crime to work, labor or do business on
Sunday. But this statute never extended to Missouri and to
find what our laws prohibit on Sunday you must look at
the words of the statute which has been read to you. Now
the section that we are charged with violating simply pro-
hibits horse racing, cockfighting or playing at cards or other
games. Can anyone think that the Legislature ever intended
to include an athletic sport like this? It could not, for base-
ball had not been invented, there was no such game known
when our lawmakers passed this law. And gentlemen our
own Court of Appeals has recently decided that this section
applies only to gambling games and games of a like nature
and like harm to the public and that Athletic sports includ-
ing this very game of base-ball is not within its intention.
So you have here the highest authority for acquitting these
young men of the charge laid against them. If their act was
not a crime and has been so declared by one of our highest
courts, then for you to find them guilty and sentence them
to a fine would be to find a thing unlawful and punishable

JOSEPH NEET AND OTHERS. 593

which has been declared innocent by the law of the land as
spoken through its judicial tribunals.

Mr. Vivion. Gentlemen : The contention of the defendant 's
counsel is that the words at the conclusion of the Statute
' ' games of any kind, ' ' mean simply games of chance or games
of demoralizing tendency, and not mere games of skill. The
Statute in this case was intended to prevent a desecration of
the Sabbath by prohibiting those things which are offensive
to a christian community, because done on a Sabbath day.
The time within which the act was done was clearly the point
the law-maker aimed at. The whole context of the legislation
shows that.

The two preceding sections relate to laws prohibiting the
breaking of the Sabbath ; so do the three succeeding sections,
likewise relate to desecration of the Sabbath. This section
was not aiming to prevent the doing of things immoral per se,
or the tendency of which is immoral, as the inhibition is not
against gambling or betting on the games, but merely against
doing the act on that day, although it be not immoral o*
tending to immorality. Racing horses and playing cards on
any other day of the week, in the absence of betting thereon,
do not constitute an offense, and if the Statute had not been
leveled simply at the doing of these acts on Sunday the law
would have prevented horse racing or card playing or games
of any kind on any day, Sunday or secular.

The counsel for defendants argue too, that base-ball is
not included in the general words, "or games of any kind,"
and urge the familiar rule of construction that where particu-
lar words of a Statute are followed by general ones, the
general words are restricted in meaning to objects of a like
kind with those specified. But the Statute does not use the
words, "and all others," but uses the words, "or games of
any kind." The object of the rule of construction is not to
defeat, but to ascertain and carry out the legislative intent,
and if the application of the rule in its fu]l strictness would
be in the face of the evident meaning of the legislature, the
rule will not be applied. In construing Statutes, penal, as
well as others, an interpretation must never be adopted that

594 XIV. AMERICAN STATE TRIALS.

will defeat its own purposes if it will admit of any other
reasonable construction.

The history of this Sunday law legislation in our State, and
the plain intent of the General Assembly is unambiguous, and
clearly evinces the intention to prohibit all classes of games
on Sunday. It is true that the Sabbath was made for man
and not man for the Sabbath; therefore, works of charity,
mercy and necessity, not only can legally, but should be per-
formed on that day. But, the Lord recognized the Sabbath as
a day of rest, and after the death of Christ and his resurrec-
tion his disciples to commemorate that event changed the
day to the first of the week, and that day is now observed
by the great body of his followers throughout the world, and
is recognized by both the common and Statute law. In this
State the right of every one to worship God according to
the dictates of his own conscience is recognized, but the law,
both human and divine, being in favor of abstaining from
games and sports on Sunday, is a reasonable requirement
and should be enforced, and the deliberate violation of these
Statutes against Sabbath breaking exerts an influence upon
the participants therein that has a tendency to break down
the moral sense and make them less law abiding citizens. In
addition to this, every person has a right to the quiet and
peace of a day of rest. Every citizen has also a right to the
enforcement of a law so that the evil example of a defiance
of the law shall not be set before his children. These are
some of the reasons doubtless that actuated our General As-
sembly in enacting this law.

The element of gambling is not made an ingredient of the
offense or of the game by the terms of the Statute. This
Statute makes the playing of games unlawful, even when
unaccompanied by betting, but limits the application of the
Statute to a particular time, to wit : Sunday. Other Statutes
make certain things an offense when perpetrated in a partic-
ular place that otherwise would not be an offense; for in-
stance, one Section provides, "that if any person shall run,
or cause to be run, upon any public road or highway in com-
mon use in this State, any horse or horses, so as to interrupt

JOSEPH NEET AND OTHERS. 595

travelers thereon, or put to fright the horses or other animals
by them ridden or driven, he shall, upon conviction, be ad-
judged guilty of a misdemeanor, ' ' and another provides ' ' that
if two or more persons run their horses in a public road for
the purpose of trying the speed of their animals, they shall be
guilty of a misdeamor," and another provides "that any
person shooting at an object or mark at random along or
across a public highway shall be adjudged guilty of a mis-
deamor." These Statutes are directed at particular acts
performed in a particlar place and manner, because the
running of a horse by a rider, or the running of two horses
by riders, or the shooting at a mark in any other place than
those named in the Statute would be harmless. To restrict
the words, "games of any kind," only to games of chance or
those of a demoralizing tendency would be to annul the
law instead of executing it, because the General Assembly
did not intend to say that only the playing of games of
chance or those of a demoralizing tendency should be a vio-
lation of the Statute.

Base ball is certainly a game. Webster defines base ball
as "a game of ball so called from the bases or points, usually
4 in number, which designate the circuit which each player
must make after striking the ball. ' '

The decision Mr. Aull has told you about simply holds
that certain athletic sports are not included in the Statute
in controversy*

This Supreme Court of Missouri has never held, so far as
I know, that base ball playing on Sunday, as it is now carried
on, as a game of skill, and really as a business, is simply an
athletic sport not prohibited by the Statute we are con-
sidering.

It might well be that certain athletic games and sports
carried on so as not to disturb any citizen or citizens on Sun-
day, and without attracting public attention, and only for
the benefit of the health, or for the pleasure of the par-
ticipants, would be held to be not within the terms of the
Statute. This is all I understand the above named case
to hold. From the report of the case it does not appear

596 XIV. AMERICAN STATE TRIALS.

what character of games were played. It does not appear
that base ball was one of the games.

"Game" is defined in Century Dictionary as "a contest
for success or superiority in a trial of chance, skill or endur-
ance, or of any two, or all three of these combined ; as games
of billiards, carets, dice or athletic games." The games of
classical antiquity were chiefly public trials of athletic skill
and endurance; as in throwing the discus, wrestling, boxing,
leaping, running, horse and chariot races, etc., etc. "The
four great Greek national games formed the strongest com-
bine in the nature of a national union between the various
independent Greek states." "At them, any person of
Helenic blood, had the right to contest for the victory, the
most highly esteemed honor in Greece; citizens in all states,
however hostile, met in these games in peace."

Anderson's Law Dictionary says, "to play a game is to
play at any sport or diversion, and the word "game" em-
braces every contrivance or institution intended to furnish
sport, recreation or amusement."

The counsel says that the rule of construction, that general
words will be limited in meaning and restricted to things
of a like kind and nature with those specified, should be ap-
plied to this Statute, and therefore, applying that rule to the
general words, ' ' games of any kind, ' ' it would clearly appear
that athletic games or sports are not included therein, but
only games of chance, or games of a demoralizing tendency.
The argument necessarily follows from this statement of
counsel that horse racing and playing at cards, and cock
fighting are games of chance, and of a demoralizing tendency.
I am of the opinion that the mere playing of cards for
amusement is, in itself, innocent, and I do not think the
public will entirely subscribe to the proposition that the
playing of cards for amusement only, is demoralizing. It is
the betting upon a game of cards that makes it demoralizing.

We have seen from the definition given in the dictionary
that horse and chariot racing was one of the ancient games
of endurance, and that, along with wrestling, boxing, leaping,
etc., constituted one of the classical games of antiquity, and

JOSEPH NEET AND OTHERS. 597

has been long recognized as one of the out-door sports and
diversions of the human race; and base ball is, in my mind,
a similar class of amusement.

I do not say that any athletic exercise, conducted in pri-
vate, so as not to be a serious interruption to the repose of a
community on Sunday, would be a violation of this Statute.

Sunday is the day appointed by the law-making power on
which the ordinary business of life shall be suspended in
order that thereby the physcial and moral well-being of the
people may be advanced.

The object of Sunday legislation is to make Sunday a day
of rest, and to prevent private citizens from being disturbed
in their enjoyment of the day by others practicing their
ordinary trades and pursuits, or indulging in disturbing or
boisterous amusement. Our theory of Sunday is simply
this, we prefer a day of rest in peace and quiet, free from
the things and bustle of work and trade ; when people can
go to church without being disturbed, or can visit, or walk,
or drive, or sail, or go to libraries and museums and picture
galleries, and play with children, rather than a day of rum
selling, horse racing, cock fighting, gambling, ball playing,
prize fighting, theatre going and getting drunk.

I do not believe the object of the act in controversy is to
protect those who can rest at their pleasure, but to afford
rest to those who need it and those who, from the conditions
of society, could not otherwise obtain it. It is manifest that
the Statute is made to prevent those things which are a
serious interruption to the repose of the community on Sun-
day, and naturally tend to disturb the quiet and rest of
the citizen. I think this is manifest from the other section
of the Statute relating to breaking of the Sabbath and dese-
cration thereof.

THE VERDICT.

The Jury returned a verdict of guilty with a fine of $12.50

against all of the Prisoners.

Some of the convicted men paid their fines, but Neet refused to do
so and was consequently imprisoned in default thereof. His counsel

598 XIV. AMERICAN STATE TRIALS.

appealed to Chief Justice Sherwood® of the Supreme Court who
issued a writ of habeas corpus against the Sheriff of the County
and on June 30, 1900 the Supreme Court ordered his discharge,
holding that he and his associates had committed no offense. 137
Mo. 527.

That Tribunal said: "Playing a game of base ball on Sunday (or
any other day) could not have been in the minds of the law-makers
when this provision of law was enacted in 1835 for the very simple
reason that such a game was wholly unknown to Art at that time.

The doctrine of ejustem generis is as rock-ribbed in the law of
this state as any principle ever announced. As applied to penal
statutes, especially, it is only a humane doctrine and accentuates
the wisdom of the fathers when they objected to being punished for
offenses by the law. It observes the respective rights of the differ-
ent co-ordinate branches of the government by requiring the legis-
lature to enact the laws — not even by construction. Baseball does
not belong to the same class, kind, species or genus as horse-racing
cockfighting or cardplaying. It is to America what cricket is to
England. It is a sport or athletic exercise and is commonly called
a game but it is not a gambling game or productive of immorality.
In a qualified sense it is affected by chance but it is primarily and
properly a game of science, or physical skill of trained endurance
and of natural adaptibility to athletic skill. It is a game of chance
only to the same extent that chance or luck may enter into any-
thing man may do. But when chance or luck is pitted against
science and skill, it is as fair an illustration of what will result as
any test that could be applied. If the view of the prosecution was
adopted that statute would be elastic enough to cover every game
that ever was or ever will be invented, no matter whether it was
harmless, promotive of physical or mental development or deleteri-
ous to both. It would prevent games of chess, backgammon, jacks,
authors, proverbs, faro, keno and poker alike, and when played on
Sunday by anyone would have been as illegal as any other. Such
a construction would curtail many of the pleasures of many of
our people without elevating them or improving their moral tone.
Until the law-makers expressly provide for such sweeping changes
in the lives and customs and habits of our people it is not proper
for the courts, by construction to impair their natural rights to
enjoy those sports or amusements that are neither mala in se nor
mala prohibita — neither immoral nor hurtful to body or soul. We
therefore conclude that there is no law in this state which prevents
playing a game of baseball on Sunday and therefore the defendant is
imprisoned for the doing of an act which is not unlawful and there-
fore the imprisonment is wrong."

tf Sherwood, Thomas Adiel (1831-1918). Born Eatonton, Ga.
Educated at Mercer Univ. Ga. and Shurtliff Coll., 111. Removed to
Missouri, 1852; Graduated Cincinnati Law School 1857; admitted
to Mo. Bar 1857 and practiced at Springfield; Judge Supreme Court
of Mo. 1872-1902; died at Long Beach, Cal. See Mo. Bar Ass'n.
Reports, 1919.

THE TRIAL OF HENRY B. HAGERMAN FOR

ASSAULT WITH INTENT TO MURDER,

NEW YORK CITY, 1818.

THE NARRATIVE.

Mr. Henry B. Hagerman was a lawyer in New York City
and Mr. William Coleman was the editor of an influential
newspaper there. Something that the editor published in his
paper about the lawyer angered him greatly, so one day he
armed himself with a heavy whip and went in search of his
enemy. He met him on the street and after knocking him
down with the butt end of the whip proceeded to beat him
into insensibility. Mr. Coleman was so badly hurt that he
was confined to his room for several days, his life being at
first in danger. A witness swore that when he gave the last
blow Hagerman said; "Take that you damned rascal for
publishing lies about me." Brought to trial for the attempt
to murder Mr. Coleman, he, Hagerman, pleaded guilty to
the assault but denied that he had any intention to kill. And
the jury acquitted him on this charge, though he had to pay
a fine of $250 and $4000 more which Mr. Coleman recovered
against him in a civil suit for the same act.

THE TRIAL.1

In the Court of General Sessions: New York City, June,
1818.

Hon. Cadwallader D. Golden,2 Mayor.

June 3.

Henry B. Hagerman was in April indicted by the Grand
Jury on the first count for assault and battery on William

iNew York City Recorder; see 1 Am. St. Tr. 61.
2 See 1 Am. St. Tr. 6.

(599)

600 XIV. AMERICAN STATE TRIALS.

Coleman, committed on April 9, 1818. And on the second
count with the same offense with intent, him, the said William
Coleman, to kill and murder. The prisoner is a member of
the New York Bar and his victim is the editor of a city news-
paper.

He pleaded Not Guilty.

Ebenezer Griffin3 and W. M. Price4' for the People.

John Anthon,5 Robert Bogardus,6 Pierre C. Van Wyck7 and
Peter J. Munro8 for the Prisoner.

On April 30, the prisoner was granted a continuance until
May 7 on account of the absence of material witnesses.

On May 7, Mr. Anthon stated to the court that he was
ready for trial, having procured a great number of witnesses ;
and moved that the prosecution proceed, or that he be dis-
charged from his recognizance.

Mr. Price said that the prosecution was ready on the last
day of the last term and the first day of this, and the de-
fendant was not ready: The application on his behalf at

a See 1 Am. St. Tr. 790.
« See 5 Am. St. Tr. 360.

5 See 2 Am. St. Tr. 787.

6 See 1 Am. St. Tr. 718.

7 See 10 Am. St. Tr. 567.

sMunbo, Peter Jay (1767-1826). Born Rye, N. Y., 1767. Son of
Rev. Henry Munro and Eve, only daughter of Peter Jay. His
father was born in Scotland and was compelled to flee to England
during the Revolution on account of his British sympathies. In
1780 he accompanied his distinguished uncle, John Jay, to Madrid,
upon the appointment of the latter as United States minister to
Spain. His previous education had also been under the direction
of John Jay. During a residence of three years in Madrid and two
in Paris he became proficient in the Spanish and French languages.
Returning to New York City in 1784 he studied law with Aaron
Burr, and after his admission he soon acquired a large practice,
and with comparative rapidity won recognition as one of the leaders
of the New York bar. He was a member of the constitutional con-
vention of 1821, and chairman of its judiciary committee. [Also
member New York Assembly, 1814-1815.] Receiving a severe stroke
of paralysis in 1826 while in the discharge of professional duties, he
retired to his country estate in Westchester County, where he lived
until his death. See "History of Bench and Bar of New York," Vol.
1, New York, 1897.

HENRY B. HAGERMAN 601

this time, was novel and very extraordinary. The public
prosecutor never could be forced to trial; and the defendant,
even had he not moved to postpone the trial last term, would
not be entitled to his present application until the last day
of this.

The Recorder ordered the case be continued until May 14.

On May 14 the Eecorder stated to the counsel, that by
reason of the public duties of the mayor, out of court, the
business, in both the mayor 's court and sessions, had devolved
on himself, and he had been on the bench three months. He
was, therefore, much exhausted; insomuch, that he was cer-
tain he could not bear the fatigue of a long trial, as this
would most probably be. This, with other reasons stated by
him, rendered it impossible he should hear the cause that
term. He would, therefore, postpone the trial until June 3d.

Mr. Munro moved, that the prisoner, on the first count of
the indictment, be allowed to withdraw the plea of not
guilty, and substitute its opposite. The motion was granted
by the Court.

A Jury was then empanelled and sworn.

MR. PRICE'S OPENING.

Mr. Price. The indictment charged the defendant with
committing an assault and battery with intent to murder; —
that by his plea of guilty to the count for an assault and
battery, the inquiry of the jury was now to be directed only
to the intent with which it was committed; — that the de-
fendant was a young man, an inhabitant of this city, a lawyer
by profession, and holding the office of judge advocate in the
militia, by profession and station honorable.

The complainant was, and had been for eighteen years,
editor of the Evening Post, a paper well known in this city
and in this country. The witnesses, he stated, would prove,
that the defendant attacked Mr. Coleman, in a most out-
rageous manner, in one of the public streets of our city ; that
he approached him, unaware of an attack; that with some
deadly weapon, he knocked him down, and while he lay bleed-

602 XIV. AMERICAN STATE TRIALS.

ing in that situation, beat him until he was completely help-
less; that his victim escaping for a while, retreated to the
middle of the street, where the attack was again renewed;
that the complainant then tottered to the opposite side of the
way, but that the cruelty of his assailant was not yet ap-
peased;— that pale, feeble, bleeding, he again escaped to the
middle of the street, whither the defendant again pursued
him, repeating the blows, until, after having satiated his ven-
geance on his exhausted and almost lifeless victim, he retired
from the scene, boasting of the gallantry of his exploit.

That the intent, in all cases like the present, must of ne-
cessity be a legal inference from the circumstances; for the
mighty malice which then rankled in the heart of the de-
fendant, was known to omnipotence only.

It would appear from the testimony, that the commence-
ment and progress of the attack were inhuman ; and that the
groans and the blood of the complainant, ought to have satis-
fied his assailant that he had endangered his life. By per-
sisting, therefore, in his cruelty at such a time, he could not,
on this occasion, escape the inference, that his intent was to
murder. The defendant had, in a recent publication, at-
tempted to justify his conduct, by alleging that Mr. Cole-
man had published a libel concerning him. But every word
and letter of that alleged libel as counsel had been instructed
to say would be proved strictly true.

The Mayor. It is questionable whether any evidence can
be received as to that publication. Without declaring any
opinion on the point I would prefer that no notice should be
taken of such proof until I hear an argument as to the pro-
priety of its admission. I will now produce the evidence and
then call upon you as guardians of the public peace to pro-
nounce whether the law is to retain its dominion in the com-
munity or unrestrained violence prevail among us.

THE WITNESSES FOR THE PEOPLE.

William Coleman. On ninth to go from my house at 30 Hud-
day of April last at about son St. to my office in Pine St.
four in the afternoon I set out "Went through Chapel St., turned

HENRY B. HAGERMAN

603

up Murray St., and was pro-
ceeding along that street to-
wards Broadway. C r o s s e d
Church St., after which the first
thing I was sensible of was that
I found myself on the pavement
on my hands and knees. It was
like waking from a dream. Saw
no person approach, and while
in this situation neither saw nor
felt anything. When recollec-
tion had come to me in some
measure felt some person beating
me with a club or loaded whip.
Thought it was through some
mistake and not being able to
speak turned up my face that I
might be known. Still felt the
blows upon head and face upon
which attempted to rise, but it
was some time before my eye-
sight was sufficiently restored to
enable me to see from whom
the blows proceeded; discovered
they were from Henry B. Hager-
man. Believe that by repetition
of the blows I became again for
a moment disordered. After
wards faint and bleeding saw
the defendant a few yards dis-
tant, who returned once more
and beat me over the head and
eyes with the lash of a whip,
until he appeared exhausted;
when he left me saying some-
thing I did not understand. A
mob soon collected and I was
carried into the grocery of Mr.
Stewart at the corner of Church
and Murray Streets where I
was revived by drinking some
brandy and water, and attempts
were made to stop the blood
until medical aid could be ob-
tained. Sent for Dr. Hosack
who was not at home. Dr. Watts
was called and Dr. Hosack soon
after coming I was by them car-
ried home in a hack; was bled
very copiously and put to bed;

was confined, having a fever,
about three days. Previous to
the attack had not seen Hager*
man on that day or even for
three years before and did not
know he was in the street.
There were nine wounds behind
on the head and there in the
face. At the commencement of
the attack I neither heard nor
saw defendant nor did I feel
the blow which produced the
fall. Besides there was a bruise
on the thigh and bruises on the
elbows which I suppose were
caused by falling. These bruises
were black and blue; the cuts on
the face I think received from
the lash of the whip when I was
in the middle of the street.

Mr. Price. Mr. Coleman, had
there been any quarrel between
you or had there been any pub-
lication in your paper concern-
ing Hagerman within a week
previous to the attack?

The Mayor. Mr. Price, the
court have already intimated
that any testimony concerning
any publication could not be re-
ceived. You perceive that this
question would open to the coun-
sel for the defendant a large field
for discussion. You had there-
fore better reserve the question
at present.

A Juror. While you was in
the middle of the street was
you beaten with the lash-end of
the whip? Yes, but I think that
the wounds on the back of the
head could not have been pro-
duced with the lash-end of the
whip.

Mr. Price. Have you the hat
which you wore at the time? I
have. (He produced a hat which
was nearly new with a large in-
dentation on the left-hand side of
the crown behind, as though a

604

XIV. AMERICAN STATE TRIALS.

heavy blow had crumpled it in-
wards.) It is of the American
manufactory. I understand a hat
of that description instead of
being broken by a heavy blow
like that of a foreign manufac-
tory, would, like the one pro-
duced, give and not break.

Cross-examined. My mode of
walking was generally with eyes
directed to the pavement but
think that I generally see three
yards ahead in walking.

Benjamin Haight. On the
afternoon of the affray was in
a gig with another and while
turning from Broadway to go
down Murray Street cast my
eyes down that street and saw
nearly opposite to the house of
Dirck Ten Broeck at the corner
of Church and Murray St., one
man beating another who ap-
peared to me to be down. At
first I knew neither of the part-
ies; as I approached perceived
one was Mr. Coleman, who rose
and staggered over or inclined
towards the middle of the street.
Mr. Hagerman, who was at some
short distance, came up and beat
him again. He reeled over to
the side of the street opposite
that in which he was beaten
while down, where he was beat-
en again by Mr. Hagerman, who
then left him and retreated a
few steps, when he returned and
beat him again, and, on leaving
him, and after inflicting the last
blow, said, . "Take that, you
damned rascal, for publishing
lies about me."

Did not perceive with which
end of the whip the blows were
inflicted in the first place; but
in the middle of the street, and
on its opposite side, the blows
were given, with much severity,
with the lash-end of the whip.

No by-stander interfered to in-
terrupt Mr. Hagerman. At
each of these several attacks,
there was a complete separation
between the parties, four or five
feet. Mr. Coleman acted with-
out intelligence, as if stunned,
and made no resistance.

Mr. Munro inquired whether
he supposed that Mr. Hagerman
intended to murder Mr. Cole-
man.

Mr. Griffin objected because
this was a matter of inference
to be drawn by the jury from
the facts.

The Mayor so decided, and
the question was waived.

Cross-examined. I did not in-
terfere because I did not consid-
er there was occasion; regarded
it as a common horse-whipping,
except the blows were inflicted
with much severity. Some of
these were struck parallel with
the ground, and some vertical;
and the principal part were over
the head and shoulders. The
whip was a blue cowhide, and
appeared to be of an ordinary
size. While in the carriage, did
not know that there were
wounds on Mr. Coleman's head.

Cornelia Ten Broeck. Reside
at the corner of Church and
Murray streets; the afternoon
of the affray was sitting at
the east window of my house,
and was roused by a groan
from the street. Went to
the window, which was shut,
and saw a person lying on the
pavement, whom I afterwards
understood to be Mr. Coleman,
the crown of whose head was
cut open. Another person was
beating him. Mr. Coleman ap-
peared to be stunned, and turned
his head and was attempting to
rise — his head being towards the

HENRY B. HAGERMAN

605

witness. The blood was drop-
ping from the back of his head
on the pavement, and the same
day I saw marks of the same
on the pavement and in the area.
The blows were given with as
much force as they could be. Mr.
Coleman appeared to be insensi-
ble; he finally rose and stag-
gered into the middle of the
street, where he was followed
and beaten on his bare head the
whole way by Mr. Hagerman,

with as much force as he could
strike. The crown of Mr. Cole-
man's head and his face were
bloody when he rose, and Mr.
Hagerman must have perceived
it. Mr. Coleman made no resist-
ance, being unable. Could not
state how many blows were in-
flicted on Mr. Coleman while on
the ground. Being much agita-
ted, turned my head from the
window and looked again and
the blows were still continued.

The Mayor submitted to the counsel for the prosecution, whether,
at present, a further examination of witnesses relative to the same
point was not a waste of time. He considered the case as it stood,
clear; but it was not his province to control.

Mr. Price. We wish to examine the attending physicians, to as-
certain the nature and extent of the injury.

Dr. John Watts. Early in
April last, was sent for to see
Mr. Coleman, and found him at
the grocery store spoken of.
There were several wounds on
the back of his head, one of
which was a pretty large one.
The scalp, at this place, was
completely penetrated, and the
wound was cut to the skull. Be-
sides this, there were several
other minor wounds, and some
bruises. He had bled pretty
freely. Dr. Hosack soon ar-
rived, and by reason of the loss
of blood, it was judged advisa-
ble not then to take more, but
to carry the patient home;
where, on his arrival, sixteen or
seventeen ounces of blood was
extracted. He remained two or
three days in bed. I further re-
quired him to avoid conversa-
tion, and not to receive visitors.
This advice and direction was
given, by reason of the peculiar-
ity of hurts, or disorders of the
head.

Mr. Griffin. Dr. Watts, what
would be the probable result of
such a wound on the head?
Wounds on the head are ex-
tremely dangerous; but, I should
think it impossible to say what
would be the result of such a
wound, in such a place, without
medical assistance.

Mr. Griffin. Is not a blow on
the head, which would have pro-
duced such a wound, calculated
to produce death? This would
depend on the instrument used;
if stiff and unyielding, it might
have produced a concussion of
the brain; but if elastic, it would
inflict only a flesh-wound. The
result of my opinion, at the time
of the examination, was, and I
still think, that the blow by
which the principal wound was
inflicted, was calculated to pro-
duce death; especially from the
delicate state of the patient's
health. There were several
wounds and bruises on his face,
one being on his nose, and the

606

XIV. AMERICAN STATE TRIALS.

other on his lip, which was cut
entirely through.

Am unable to say how long the
patient was confined to his
house; but the physicians did
not consider him out of danger
in three days. There was a
spitting of blood; but whether
from the wound on the lip, or
from the lungs, do not know.
Judged the violence sufficient to
have produced a spitting of
blood from the lungs.

At the time of the first exam-
ination of the principal wound
on the back of the head, I also
examined the hat, and found the
place of its indentation corres-
pond with that wound; my opin-
ion at the time, founded on such
examination, was, that the blows
on the back of the head were in-
flicted with a club, or a cane, or
the butt end of a loaded whip.
Do not believe the butt end of a
cowskin could have inflicted the
blow. The scalp, or even the
skull, might be broken by a blow
on a hat, which, if made of good
stuff, might remain unbroken.

Dr. David Hosack (testified to
the same facts, in relation to his
being called to visit Mr. Cole-
man, to his condition in respect
to the injury, and to the treat-
ment of the wounds inflicted, as
were stated by Dr. "Watts. ) Have
been the family physician of Mr.
Coleman a number of years; al-
though his appearance indicates
health, yet, he is a man of a fee-
ble constitution, and subject to
spitting blood. Thought it best
to open the scalp on the bruises
on the head, and discharge the
blood; but, on consideration, that
course was not pursued.

Powerful depleting remedies
Were applied. Considered the
wounds inflicted calculated to

produce death, especially from
the predisposition of the patient;
and such a beating might even
in a healthy person, have pro-
duced death; but, with proper
medical treatment towards such
person, do not consider it proba-
ble that this effect would have
ensued. Coincide in opinion
with Dr. Watts that the princi-
pal wound could not have been
inflicted with the butt end of a
cow-hide, think that it must have
been done with a heavier instru-
ment. The patient was confined
at home ten days.

Cross-examined. I enjoined my
patient to be kept quiet; he
could not have written a letter
on the following day although
from the remedies applied, Mr.
Coleman had a temporary relief.
1 considered there were symp-
toms of danger.

The Coukt. Might not the
smaller wounds and bruises on
the head have been produced
from blows given with a cow-
skin? I thought not and that is
my opinion still. From the size
and situation of the wounds and
bruises on the head I believed
they were inflicted with a cane.
The cut on the lip I believed to
have been made with the lash-
end of a whip.

Dr. Watts (recalled). I coin-
cide with Dr. Hosack in his opin-
ion that the wound on the lip
was inflicted with a whip and
not with a blow from the fist;
for having particularly exam-
ined the wound with the view of
forming an opinion I found that
the cut was clear and not
bruised on or near the inside of
the lip, next the teeth, as it
would have been had a blow
from the fist have produced the
wound.

HENRY B. HAGERMAN

607

THE DEFENSE.

Mr. Anthon. Instead of using
recriminatory language towards
the prosecutor, I will on this oc-
casion, appeal to your sound
judgment. By his plea the de-
fendant admitted a simple as-
sault and battery which his coun-
sel are not prepared to justify.
The only question therefore for
the determination of the jury, is
whether there was an intent to
murder. Though the court has
very properly excluded all testi-
mony in relation to a publica-
tion, yet sufficient evidence has
arisen on behalf of the prosecu-
tion to show what was the mo-
tive which led to the attack. The
reason was disclosed at the time,
for according to Haight's testi-
mony, the defendant said at the
time of the chastisement, "Take
that for publishing lies about
me". Even with this testimony
the defendant might safely ap-
peal to the jury on the question
of intent. We shall however pro-
duce witnesses who saw the af-
fray from the commencement.
We shall show conclusively that
he came up at the distance of
one hundred and fifty feet di-
rectly in front of Mr. Coleman,
struck him with the fist in his
face and he then suddenly fell
down and struck the back of his
head against a railing on or near
the sidewalk, which fall pro-
duced the injury described by
the witnesses. He rose and as
counsel are instructed to say,
made battle with Mr. Hagerman,
who retreated into the middle of
the street, and blows from a
small cowskin were continued
and repeated with considerable
severity. This account of the
transaction we believe the jury

would find coincident with the
relation of Mr. Haight and Mrs.
Ten Broeck, and the circum-
stance of the blood in the area
shows that the wound was in-
flicted by the fall against the
railing. The jury in forming a
conclusion as to the intent are
to judge not from a probable
event but from pre-existent cir-
cumstances. Hagerman openly
and in front, attacked the prose-
cutor in the public street in the
middle of the day and with a
small cowskin. These promi-
nent facts, some of which are
about to be established we hope
will be kept in view by the jury
in determining whether the
defendant harbored an intent to
commit murder. We admit there
was a violent assault and bat-
tery but deny the intent attempt-
ed to be fastened on him by the
prosecutor.

Gilbert Haviland. Reside in
this city; am a cartman. Saw
the affray spoken of by the
other witnesses. Stood on my
cart and rode along Church
Street in company with James
H. Hawes who was on his cart
a short distance before me and
just as I was turning round the
corner of that street to go
down Murray street towards the
river, on turning my head up
the street, I saw Mr. Hagerman
coming down, and as he got
nearly opposite, and being in
front of Mr. Coleman, he said
something like, "You damn'd
rascal," and hit Mr. Coleman,
with the fist, on the right side
of his face, who immediately
fell with the back of his head
against the railing. His hat
flew off when the blow was giv-

608

XIV. AMERICAN STATE TRIALS.

en, and as he rose, Mr. Hager-
man took from under his coat a
cowhide, and struck him a num-
ber of blows over the head and
shoulders; how many I cannot
say.

Mr. Coleman appeared to be
stunned with the fall, and ap-
peared like a drunken man, my
first impression was that he was
some drunkard who deserved a
whipping; and this was the rea-
son I did not interfere.

After Mr. Coleman rose he
staggered towards the defendant,
and said something which I did
not hear; to which Hagerman
said, "What is that you say, you
damn'd rascal?" and then beat
him again.

Hagerman struck all the
blows with the lash-end of the
whip, at a distance, as if he was
afraid Mr. Coleman would take
hold of him. I saw all the
blows, and none were struck ex-
cept with the fist, the hand, and
the small end of the whip.

This was on Saturday — and
on the next day I received a
note from Mr. Coleman, and, in
consequence thereof, on Monday
I called on him and found him
sitting in his easy-chair, and he
appeared to be better. He asked
me a few questions, and, having
answered, I left him.

The note is here:

"Sunday Morning.
"Sir — You would confer a
great favor on a stranger, by
calling at No. 30 Hudson-street,
with your friend Hawes.
Yours, &c.
(Signed) William Coleman."

Cross-examined. Previous to
the time of calling on Mr. Cole-
man neither Mr. Hagerman nor
any other person had called on

me on the subject of my knowl-
edge concerning the affray, but
the next week, defendant with
two other persons did call on
me and conversed with me con-
cerning the affair. When I first
saw Hagerman coming down
Murray street he was above the
livery stable of John Curtis
which is on the right hand side
of the street in coming from
Broadway. At the time the at-
tack commenced I was riding
very slow round the corner of
Church and Murray streets and
at about the distance of sixty
or seventy feet from the parties.
Hawes was just before me to
whom I observed that the as-
sailant would cut out the eyes
of the other. The blow with the
fist which felled Mr. Coleman
was an underblow or one in an
horizontal direction, given on
the right side of the face, though
upwards, and as he fell suddenly
backwards he turned or curled
around. Do not know how
many blows were struck with the
whip. There is one circumstance
I forgot to mention. I was mis-
taken in saying that before I
went to Mr. Coleman, no person
had called on me on the subject
of my knowledge concerning
this affair. Shortly after the af-
fray took place Mr. Maxwell
came to my house to know the
truth of the matter.

James H. Hawes. Saw a part
of the affray. As I was com-
ing round Church into Murray
street the first thing I saw was
a man falling and another beat-
ing him. The person attacked
fell partly with his head and
shoulders against the railing,
and as he fell doubled up, his
head being down the street. The
assailant struck with no other

HENRY B. HAGERMAN

609

weapon that I saw but the end
of a cowskin. At the time I first
saw the affray I thought the one
attacked was some black man.
In five or six days afterwards
saw Mr. Coleman and we con-
versed on the subject.

Francis Alsfeldt. Mr. John
Hunter and myself were coming
up Murray street from ^the river
on the left-hand side of the
street and saw a man on the
pavement and another beating
him with the small end of a
cowskin. Observed the person
who lay down, rise up and stag-
ger like a drunken man. I said
to Hunter, "See there is a drunk-
en man". When I first saw the
one who was down, at the dis-
tance of twenty of thirty steps,
his head lay against the railing.
Did not interfere because I was
a stranger and did not know the
laws of the place.

Augustus Gum-bold. My house
is the next door to that opposite
which the attack commenced.
Came to door and saw Hager-
man beating Mr. Coleman, who
was bloody, with the small end
of a cowskin. No person inter-
fered and the reason I did not
was that Hagerman did not ap-

pear to be in a passion. Did not
see anything in the conduct of
the assailant that indicated an
intention to commit murder.

Dr. Felix Pascalis. Seven or
eight days after the accident
saw Mr. Coleman at his house
in bed and he then appeared to
be getting better. A blow on
the head may produce a fracture
of the skull, a compression or a
concussion of the brain, and
those were the only injuries
arising from a blow on that part
of the body, endangering life;
could not say, that a blow like
that inflicted on the back part of
Mr. Coleman's head, as described
by the other witnesses, was, gen-
erally speaking, calculated to
produce death.

Dr. Stephen D. Beekman. The
wound on the lip, as described
by the other physicians, might
have been produced by a blow
from the fist, or from the small
end of a whip.

Cross-examined. A more cor-
rect opinion could be formed
concerning the kind of instru-
ment by which a wound was in-
flicted, at its inception, than at
any subsequent period.

IN REBUTTAL.

William Colenvan (recalled).
Eight days after I was hurt I
wrote the note to Haviland who
called at my house and in the
course of the conversation said
that Hagerman with two other
persons had been at his house
and spent an evening and that
Maxwell had also been there.
Haviland during his conversa-
tion, said that Hagerman with
two other persons had been at
his house and spent an evening

and that Maxwell had also been
there. Haviland during this
conversation also said that Hag-
erman struck me on the left
side of the face. I inquired of
him how it was possible that
Hagerman should strike on
the left-hand side of the face
(that being next the railing) in
such manner as to have brought
the right-hand side of the back
of the head against the same
railing. To this inquiry he gave

610

XIV. AMERICAN STATE TRIALS.

little answer. Saw the police
magistrates on the subject on
Saturday next after the attack.
Have heard that the character
of Haviland is bad. Have
brought a civil action against
the defendant.

Mr. Price. Do you think it
possible that the defendant
could have come in front and
struck you without your perceiv-
ing him? I do not think it pos-
sible, for there was no mark of
a blow on his face.

David Roger's, Balthazar P.
Melick, Edgar Lang, John Van
Bussum and Simon Martyne
testified that the general charac-
ter of Gilbert Haviland for truth
and veracity is bad. The first
named had known him for ten
or fifteen years. He had for sev-
eral years been engaged in busi-
ness in his line, for the firm of
Melick and Rogers, who by rea-
son of some particular conduct
on his part, an account of which
the court excluded, discharged
him from their employ.

Br. Hosack (recalled). Did
not think that any blow given
in Mr. Coleman's face, which
produced the wounds there could
have brought him to the ground,
there was no mark of a fist on
his face; nor do I believe that
the principal wound on the head
was the result of a fall, but, evi-
dently, of a blow. He examined
the wounds and bruises on the
head, with the view of ascertain-
ing how they were inflicted, and
found the principal one of a
longitudinal form, which he does
not think could have been pro-
duced by a stone.

Also examined the railing and
do not think it possible that the
wound on the head could have
been occasioned by falling there-

on; nor do not recollect whether
their sharp edges were opposite
the street.

Dr. Watts (recalled). I coin-
cided with the last witness, in
the opinion that the wound was
not occasioned by falling against
the railing. The reasons, — 1.
That had Mr. Coleman fallen
against the railing with suffi-
cient force to have produced the
wound, the additional violence
which the head must have sus-
tained when it struck the pave-
ment, must have been much
greater than it actually was. 2.
The principal wound was too
near the top of the head to be
produced by falling backwards
against the railing; that is, he
must have fallen in a measure
head foremost to have produced
such a wound.

Dr. John W. Francis. Am
professor of medical jurispru-
dence in the University of New
York, saw Mr. Coleman and ex-
amined his wounds, on the Mon-
day evening after the attack;
and believed them calculated to
endanger life. There were five
or six ridges on the back of the
head, running in a longitudinal
direction, parallel with each
other, and the principal wound
extended to the skull bone. —
No mark of a fist was percepti-
ble on the face. Did not believe
that the wounds could have been
caused by a fall; and having
since examined the railings, do
not think they could have pro-
duced the effect which appeared
on the head, though the large
wound might have been pro-
duced by a fall against the rail-
ings.

Dr. Hosack (recalled). Had
examined the railings, and found
them too old and decayed to

HENRY B. HAGERMAN

611

have occasioned the wound; in
addition to the principal wound,
the bruises were too numerous,
and in such situations on the
head that they could not have
been occasioned by the fall.

Joseph Desboues. A short
time before the attack, from the
window of my office, No. 7 Mur-
ray street, observed Mr. Hager-
man going down from Broadway,
on the righthand side of the
street. He stopped a few min-
utes and talked with a young
gentleman behind a carriage
which stood below Curtis' liv-
ery stable. After the affray
heard Mr. Hagerman say, "This
is the way I chastise editors."

John Huther. On the after-
noon of the attack, was coming
up Murray-street, in company
with Francis Alsfeldt, before
sworn, who said "See there is a
drunken man." When Mr. Cole-
man rose, Mr. Hagerman beat
him with the cow-hide; and,

when in the middle of the street,
he returned a second time and
beat him, saying, "That is for
putting me in the papers."

Mr. Price. We think proper,
on the part of the prosecution,
to offer the defendant, if he will
produce, from the columns of the
Evening Post, the publication al-
leged by him to be the occasion
of the attack, to prove every
word strictly true, or abandon
the prosecution.

The Mayor. Mr. Price, my
impression on this subject,
which was intimated in an early
stage of this cause, is, that this-
testimony cannot properly be re-
ceived. The question came up,
recently, before Judge Patterson,
in a trial before the circuit court
of the United States; and he de-
cided that such testimony was
improper. For myself, I do not
feel disposed to travel one step
beyond this affray.

THE DEFENSE AGAIN.

Dr. William J. McNeven.
Have seen the railings; their
sharp edges were towards the
street; believe they were strong
enough to occasion the injury
sustained.

Dr. John Nelsvn. Have just
returned from examining the
railings, which I believed strong
enough to kill a man, should the
back part of his head strike with
sufficient force against them.

Recently examined the scar
where the principal wound was
inflicted. It is my opinion that
this wound was too high on the
head to have been occasioned by
a fall against those railings un-
less the head by the blow on the
face, had been knocked upwards.

A doctor who had examined a
wound in its recent state was
far more competent to form a
correct judgment relative to the
weapon with which the wound
was inflicted, than one who saw
it afterwards, or at a period
when its scar only was left. It
is difficult to account for this
principal wound on the head, on
the supposition that Mr. Cole-
man was struck in the face and
knocked down.

Nathaniel W. Strong, Abirahamy
Stagg, Isaac Kip, Joseph P.
Simpson, Benjamin Stagg, Wil-
liam Stone, Jacob Hayes, John
James, Alexander Denister, John
Murphy, William Dodge, William
H. Ireland, John Cornell, a mar-

612

XIV. AMERICAN STATE TRIALS.

shal and Benjamin Ferris, clerk
of the mayor's court, severally
testified to the general good
character of Gilbert Haviland.
The principal part of these wit-
nesses had known him from ten
to twenty years and many of
them stated that they would
place as full reliance on his tes-
timony in a court of justice as
on that of £ny other man in so-
ciety.

Haviland (recalled). In the
conversation which I had with
Mr. Coleman at his house, I told

him expressly that the blow
which felled him, was given on
the right side of his face. Dur-
ing the conference Mr. Coleman
claimed relationship with me,
alleging that his (Coleman's)
wife whose maiden name was
Haviland, was a cousin of mine.
Some things which took place
at the time of the affray, Mr.
Coleman related and others he
said he did not remember.

Mr. Coleman. Recollect your-
self. You are wrong.

Mr. Griffin directed the attention of the opposite counsel to a prin-
ciple of law on which the prosecution relied, as laid down by his
honor the late mayor of this city in the case of Henry O'Blenis
tried in this court in the term of July 1816. The principle was that
where in an affray the instrument or means employed by the wrong-
doer were calculated to produce death and where, had it ensued,
such killing would have been murder, there the jury may presume
or infer an intent to kill, though express malice be not shown.

The Mayor. There is no doubt but that this was the law. I re-
quest the counsel to read the case.

Mr. Griffin. The facts in that case were briefly these: O'Blenis,
the prisoner, commenced a quarrel with and struck Clement Haines,
who, in the act of defending himself knocked the prisoner down.
Recovering, he procured a part of a board with which he commenced
another attack on Haines, who wrested it away, and again threw
him down. He rose, retreated a few steps, stripped himself, came
at the prosecutor and made a pass at him with a knife and stabbed
him. Price, for the prisoner, contended, that there was no proof of
felonious intent; but the late mayor, in his charge to the jury laid
down the principle that where a man who is a wrong-doer from the
commencement makes use of a knife or other dangerous weapon in
inflicting a wound, and where if death ensued it would be murder,
either under the statute of stabbing or at common law, the jury
might presume an intent to kill, though no express proof of that
intent was produced. The prisoner was convicted and imprisoned.

Abraham W. Groesbeck. Was
going down Murray-street, and,
at about the distance of one
hundred feet, saw the commence-
ment of the affray. In the first
place, Mr. Hagerman came up
directly in front of Mr. Coleman,
and struck him with the fist in

his face, and knocked him down.
— He reeled and fell backwards
with his head against the rail-
ing. Defendant then drew from
under his coat a common cow-
skin, and struck Mr. Coleman
eight or ten blows with the lash
end of the whip. He stopped

HENRY B. HAGERMAN

613

beating him, and Mr. Coleman
rose and stood with his back
against the railing, when the
defendant beat him again. From
this place he went towards the
defendant into the middle of the
street, and, while standing there,
the defendant attacked him
again. Mr. Coleman, in a stupe-
fied manner, said, "Why, why,
what have I done?" or some-
thing to that purpose; to which
Mr. Hagerman said, "I will
learn you to slander me in the
public papers." Mr. Coleman
then uttered some inarticulate

sounds like "Oh! Ho! Oh! "

and appeared stupefied. During
this time the defendant was
striking him with the whip.

Mr. Griffin. Had you seen
Hagerman before this attack on
that day? That question I
don't wish to answer.

The Mayor. I think you are
bound to answer that question,
it is not improper. I did see Mr.
Hagerman before the affray and
on the same day.

Mr. Griffin. Had you any con-
versation with him concerning
the atttack on Mr. Coleman be-
fore it was made? I don't think
proper to answer that question.

The Mayor. Mr. Groesbeck,
you must answer or suffer the
consequence. The court will take
care that no improper questions
are put by the counsel.

Mr. Groesbeck. I think that
an answer to this question will
have a tendency of criminating
myself.

The Court. No such effect
could follow; proceed.

Mr. Groesbeck. Had a conver-
sation with Mr. Hagerman two
or three days before the affray
and he said that he intended to
chastise and disgrace Mr. Cole-

man. The occurrence took place
at about five o'clock in the after-
noon; about a half hour before
which time at my store, I saw
Mr. Hagerman, who from that
place went down Murray St.

Mr. Griffin. Did you accom-
pany Hagerman from your store
into Murray St.? I went down
Murray St.

Why at that time did you go
down Murray St.?

The Court. We think that
the witness may refuse to an-
swer that question. Whether so
designed or not, an answer may
clearly have a tendency of crim-
inating himself. (To the wit-
ness.) You may either answer
that question or refuse to an-
swer it, as you think proper. •

Mr. Groesbeck. I shall decline
answering.

Mr. Griffin. Did you see Hager-
man standing behind the car-
riage previous to the attack? I
did so; the carriage stood about
one hundred feet from Broad-
way and the defendant went be-
hind the carriage to let Coleman
come up Murray St. Mr. Cole-
man came up Murray St. towards
Broadway, until he came oppo-
site Dr. Mason's church, when
the defendant went behind the
carriage. Mr. Coleman was be-
low Church St. when the defend-
ant went from behind the car-
riage to meet him. He was
struck in the face by Mr. Hager-
man but on which side I could
not state as I was at that time
at too great a distance. For
two or three days before the at-
tack, Mr. Hagerman was search-
ing for Mr. Coleman, for the pur-
pose of chastising him. At the
time of the attack Mr. Hager-
man had nothing, to my knowl-
edge, about him except a com-

614 XIV. AMERICAN STATE TRIALS.

mon cowskin and I have no rea- in April last, and with others of

son to believe otherwise. Saw that body, waited on Mr. Cole-

the whole affair from its com- man at his house; who, on being

mencement until its termination. asked by the jurors what reason

Previous to the attack, and while he had for believing Mr. Hager-

in Murray-street,, did not see Mr. man intended to kill him, an-

Hagerman stoop down. swered, that Mr. Hagerman

Ephraim Conrad. Was one of came up to him the second time;

the grand jurors in this court this being the only reason given.

Mr. Van Wycke contended that it did not follow, that be-
cause, in this case, had death ensued, the killing would have
been murder, that, therefore, a presumption of an intent to
commit murder could be legally raised. He instanced the
case of a riot, in which several might be engaged, and death
to one or more persons might be the result : though this might
be murder, inasmuch as the perpetrators were engaged un-
lawfully, yet, if death did not ensue, no intent to kill could
be inferred. In addition to the fact, that the perpetrator is a
wrong doer, or that he is engaged in an unlawful act or
business at the time of the killing, it must be further shown,
that he either used a dangerous or unlawful instrument, or
employed means necessarily calculated to produce death.
Such was the meaning and spirit of the case relied on by the
counsel for the prosecution. There the instrument was a
knife; here a common cowskin.

That Mr. Hagerman attacked from behind, with an unlaw-
ful weapon, as was stated in the opening, is not shown by a
single witness, and is expressly disproved by the testimony
on his behalf. Upon those grounds, public opinion had been
formed, and public prejudices excited by public statements
from a press conducted by the prosecutor himself. But on
this occasion, those grounds had utterly failed ; and the jury
were to judge of the intent, and of that only, from the facts
before them.

From those facts, in connection with the time and manner
of the attack, an intent to kill could not, rationally, be drawn
by the jury.

Had the defendant harbored a design to kill, he would
have attacked in secret, and with a deadly weapon, and not in

HENRY B. HAGERMAN 615

the streets of a populous city, in the middle of the day, and
with an ordinary cowskin. Or, if even that design had arisen
in his mind at the time of the affray, having his adversary
in his power, he would have jumped upon him, and, at least,
have endeavored to consummate his intent. But he inflicted
a chastisement, severe it is true, with an instrument not un-
lawful, and then, voluntarily, left the prosecutor.

Mr. Price contended that the facts in the case would fully
justify the inference that the defendant intended to kill. —
Though it had not been directly proved that he attacked the
prosecutor from behind, and with a deadly weapon, yet the
facts and circumstances, produced on behalf of the prosecu-
tion, fully justified the conclusion: and even admitting that
the commencement of the attack was in the mode described
by the opposite counsel, still, the inhumanity of the defendant,
during the attack, was sufficient to fasten on him the intention
to kill. Whether he made use of an unlawful weapon was
wholly immaterial, provided that the means employed were
calculated to endanger life.

The principal circumstances in this case, as affording evi-
dence of this intention, may be classed under four distinct
heads : 1. The design of the attack was premeditated several
days before it occurred. 2. There was a disparity in age
between Mr. Coleman and the defendant. The former was
weak and feeble; the latter young and athletic. 3. The
lying in wait for his adversary, and, 4. The attack from
behind.

The Mayor. Gentlemen, whatever may have been the
excitement of the parties immediately interested in this cause,
or of the numerous auditors who have crowded the court room
during the trial, I trust that the court and jury will be able
to discharge the duties of their respective stations free from
any prejudices, partiality or bias. I feel a confidence that the
jurors will not be influenced in their determination by any
extraneous matters.

It would be the duty of the jury to lay the publication,
stated by the counsel as having given rise to this controversy,
entirely out of view.

616 XIV: All ERIC AX STATE TRIALS.

The counsel for the prosecution have placed this case on a
wrong ground. — They have treated it as though a personal
wrong, to an individual, was to be redressed ; but the jury
will bear in mind, that this court is not constituted for the
purpose of remunerating for any injury a witness may have
sustained. — Here, the redress of public wrongs is the only
legitimate object on behalf of the prosecution.

The defendant is indicted for a simple assault and battery,
and is charged in the two last counts of the indictment, with
the same offense, coupled with an intent to commit murder.

The assault and battery is admitted ; and the principal
question in the case for the jury to determine is, whether he
intended to commit murder.

There are two species of intent recognized by the law, as
applicable to this case :

1. The intent may be premeditated or actual, as in a case
where threats or menaces are used previous to the commission
of an offense.

2. There may be a constructive or presumptive intent ; as,
where the evidence of an actual intent is wanting, but some
means are employed in the commission of an offense from
which the intent may be rationally drawn. This kind of
intent is always a matter of inference for the jury.

In this case, there is no evidence of a premeditated intent
to commit murder ; and if we are to rely on the testimony of
Mr. Groesbeck, as evidence of an actual intent, the contrary
appears; for it is expressly proved by that witness, that the
defendant declared that his design was that of chastising and
disgracing the prosecutor.

Independent of this testimony, which is positive, there .is
not only the want of evidence of a premeditated design to
kill, but there are other important features or circumstances
in the case, which go far in evincing that the defendant did
not harbor this design previous to this attack. He armed
himself with a common cowskin, and made the attack in the
day time in one of the streets of our city.

In the opinion of the court, should the verdict in this case

HENRY B. HAGERMAN 617

depend upon the actual intent, the jury could not rightfully
find the defendant guilty.

But. as the court has already stated, there is, in the law, a
constructive intent to be inferred by the jury from the facts
and circumstances in the case : As, where a man, in an at-
tack, makes use of means which, in all human probability,
might have produced death, — where he arms himself with
a pistol, a sword or a knife, and commences an attack and in-
flicts a wound calculated to endanger life, there the intent to
kill shall be inferred. And this is the principle of the case,
decided in this court, read from the book and relied on by
the counsel for the prosecution.

Let us, in the case before us, recur to the means employed
by the defendant in this attack: It is not insisted by the
counsel for the prosecution, that if the defendant had used
a cowskin, merely, in an ordinary manner, that this would
have afforded evidence of an intent to commit murder. Aware
of this, they have endeavored to infer from the evidence
produced that a stone or some dangerous weapon was used by
the defendant in the commencement of this attack. How far
the facts and circumstances in the case will warrant this in-
ference, are matters solely within the province of the jury.

But it is further contended, on behalf of the prosecution,
that even admitting that the defendant employed no danger-
ous weapon, still, the means employed in this attack with the
whip, afford a presumption of an intent to kill.

It is said on this branch of the subject, that, as the prose-
cutor was of delicate health and was weak and feeble, that
such an attack was peculiarly calculated to endanger his life :
but the court is unable to perceive how this consideration can
affect the question, for there is no evidence in the case that
the defendant knew the constitution of the prosecutor, or the
state of his health.

But it is further insisted, on behalf of the prosecution, that
the facts in the case will warrant the inference that the de-
fendant made the attack with the butt end of a whip ; and
that the inhumanity of his conduct, during this affray, shows
that he intended to commit murder.

618 XIV. AMERICAN STATE TRIALS.

Admitting that the defendant did strike with the butt end
of the whip, this circumstance, in itself, would not afford
evidence of an intent to kill. But the jury in determining
this point, (should they consider it important in enabling
them to arrive at the intent, ) by recurring to the testimony on
behalf of the defendant, to which the court will presently di-
rect their attention, will find that the lash end of the whip
only was used during this attack.

The court, however, will not say that blows inflicted even
with the small end of a whip, under some circumstances,
would not evince a determination to kill. For if the party
should inflict blows with such an instrument for that length
of time, and with that unexampled severity, as to demonstrate
his inhumanity and utter want of feeling, the jury might,
under a view of all the circumstances, presume such de-
termination. And if in this case the facts will warrant such
presumption, the jury ought to find the defendant guilty of
the charge in the two last counts of this indictment.

But as it is an important question in this case, whether the
prosecutor was struck from behind, it is necessary, for the
purpose of forming a correct determination, to advert to the
testimony.

On this subject we have the positive testimony of Gilbert
Haviland, who testifies that the attack was made in front with
the fist; and if this witness is to be believed, the prosecutor,
during the continuance of the attack, was not injured by the
butt end of the whip. This witness is not contradicted by
any positive testimony, and, considering that no witness on
behalf of the prosecution saw the commencement of the at-
tack, it was impossible that he should be. But it is said that
a combination of circumstances in this case, produced on be-
half of the prosecution, afford a contradiction to his state-
ment; and the testimony of the attending physicians is re-
ferred to for that purpose. These witnesses testify, that they
examined the wounds on the back of the head, soon after
they were inflicted; and it is their opinion, that they were
not occasioned by the fall against the railings. They also
state, that there was no mark of a blow on the face which

HENRY B. HAGERMAN 619

could have occasioned the fall. Haviland testifies that the
prosecutor fell with the back of his head against the railing.

On this subject there is some contradiction between the
physicians. Dr. Hosack states that it is impossible that the
wound on the back of the head should be produced by falling
against the railing: for having examined it he found it in-
competent to have produced them ; and that the number and
situation of those wounds could not have been the effect of
a fall.

Dr. Watts does not think that the wounds on the head
resulted from a fall; and his reasons for -that opinion are,
that the principal wound was too high on the crown of the
head; and that had the prosecutor fallen back on the rail-
ings with sufficient force to have produced that wound, the
additional injury on the head must have been greater than
it actually was.

Dr. Francis on this point states, that this wound might have
been occasioned by a fall against the railings ; and Dr. Nelson
testified, that the principal wound, though too high on the
head to be the result of a fall, that this effect might, never-
theless, be produced, if the head, by the blow on the face,
were struck upwards.

As the statement of Haviland, if to be relied on, is im-
portant, it is necessary that we should direct our attention to
the testimony for and against his general good character.
There is something in the general appearance and manner of
a witness, examined in a court of justice, calculated to im-
press the mind with the character of his testimony, and I
must say, that I believed the general appearance of this wit-
ness evinced an intention to speak the truth.

It is insisted, however, on behalf of the prosecution, that
this witness is impeached by the positive testimony of a
number of others; and that the opposite testimony on this
point is of a negative character. But in the view of the
court this testimony in support of his character is positive;
and, to say the least, this conflicting testimony is balanced.

His testimony is corroborated by Haws, an unimpeached
witness, who, though he did not see the commencement of the

620 XIV. AMERICAN STATE TRIALS.

attack, yet he saw the prosecutor falling with the back of
his head against the railing, and the defendant afterwards
beating him with the small end of the cowskin.

This account of the transaction is confirmed by Abraham
Groesbeck, who testifies that he saw the whole affair from the
commencement. It is said with regard to this witness, that
his general appearance, his manner and his conduct on this
occasion, have a tendency of attaching discredit to his whole
statement, and that it is not entitled to belief. It is true, it
may justly be said, that he has not behaved with that de-
corum which ought to be observed by every witness in a
court of justice. But it should be considered that he may
have been apprised, previous to his examination, that if he
related any matter disclosed to him in confidence by the de-
fendant concerning the intended attack, it might have a
tendency of criminating himself; and to this erroneous im-
pression, if it existed, his conduct as a witness may be fairly
imputed.

The testimony of this witness is not contradicted, and if
it is to be relied on by the jury, there can remain no doubt
but that the prosecutor was attacked in front, and that the
attack was continued with the small end of the cowskin. If
then the jury should be satisfied that this account of the
attack, as given by these witnesses on the part of the de-
fendant, is correct, the court is at a loss to know how this
presumptive intent to kill can be rationally inferred either
from the means employed or from the mode of inflicting the
blows. It is true, the defendant has been guilty of an aggra-
vated assault and battery, but the evidence in the view of the
court, does not establish either an actual or an implied intent
to commit murder. The court on this occasion would have
discharged its duty by merely laying down the law as applic-
able to the case, and by adverting this distinction between
a premeditated and a presumptive intent; but in a case in-
volving so great a variety of facts and circumstances, it was
deemed useful by the court to recur to the testimony in the
case with some particularity.

HENRY B. HAGERMAN 621

THE VERDICT.

The jury retired at about half after one in the morning
and in about ten minutes returned, by their foreman, Henry
Eekford, a verdict in these words :

We find the defendant guilty of an assault and battery of
the highest degree, but not with intent to kill.

June 29.

Mr. Price. An affidavit on behalf of the defendant, in extenuation
of his offense, having been delivered to the court, on behalf of the
prosecution, we move the court for the inspection of those affidavits,
for the purpose of framing counter-affidavits in aggravation.

Mr. Bogardus. As the object of affidavits in extenuation, was
merely for the information of the court, the opposite party has no
right to their inspection, nor a right to file counter-affidavits, unless
the court, for further information, request him to do so.

The Mayor was not conversant with the practice in such cases and
requested the counsel to refer to the authorities on the subject, and
exhibit them to the court. The then present impression of the court
was that the affidavits offered should be received.

Mr. Price cited to the court a passage from 1 Chitty's Criminal
Law, page 693, for the purpose of showing that the practice in the
courts in England was, that the prosecution had a right to read
affidavits in aggravation and the defendant in mitagation. That
each party must come prepared with affidavits disclosing all the cir-
cumstances of the case; that the affidavits in mitigation are first
read, then the prosecutor's in aggravation, and then the defendant's
counsel are to address the court in mitigation. That both parties
are to have their affidavits prepared for inspection in the first in-
stance, because the court will not, in general, receive the statement
of one party first, and then admit the other to answer it, as that
practice would be a perpetual temptation to perjury.

Mr. Bogardus admitted that such was the practice in England but
not in this court, and he offered to withdraw the affidavits for a
short time, until after having consulted with his associate counsel,
he should have an opportunity of determining what course to pursue.

The Court said if he withdrew those affidavits they would not
again be received. The court preferred that the question should lie
over until the following day when the point of practice in relation
to affidavits in mitigation would be settled.

The Counsel for the Defendant asked permission of the court to
withdraw those affidavits, and leave was granted.

June SO.

The Mayor said that affidavits had been presented to the court in
this case, both on the part of the defendant and of the prosecution.
Those on the part of the defendant he has asked and the court have
granted him permission to withdraw them. Some difference of opin-

622 XIV. AMERICAN STATE TRIALS.

ion having been expressed by the gentlemen of the bar, as to what
is, or ought to be the practice in relation to the exhibition of affi-
davits of this nature, the court avail themselves of the present op-
portunity of expressing their opinions on this subject. It would
seem, that a defendant has a right to submit affidavits in mitigation
of the punishment in all cases of this nature; and where such af-
fidavits are submitted on the part of the defendant, the court will
receive affidavits on the part of the prosecution, but the prosecutor
has no right to demand the reading of the defendant's affidavits to
enable him to prepare others on his side.

If in the affidavits on the one side or the other, it should appear
to the court that there are points which it would be proper to call
on the party making the affidavit, or the opposite party, to explain,
the court may hand back the affidavits, with directions which will
confine the parties to these particular points. In this way the parties
will be under the control of the court, and that endless war of affi-
davits and temptation to perjury, which an interchange of affidavits
would invite, will be guarded against.

The court will not say that they will in no case receive an affi-
davit on the part of the prosecution, where none has been offered
on the part of the defendant. But it must be some very extraordi-
nary circumstance, and such as cannot now be anticipated, which
would induce the court, after a trial and verdict, to receive an affi-
davit on the part of the prosecution, where none is presented on
the other side. They undoubtedly never would do it as a matter of
course, or without a special application to the court.

In this case, where every circumstance immediately connected
with the offense has been disclosed by the witnesses examined on
the part of the prosecution, the court certainly would not receive
the affidavits on the part of the prosecution, if none were offered by
the defendant, and the defendant, having withdrawn his affidavits
before they were read by the court, it is considered that the case
stands as if no such affidavit had been presented on his part.
Tbey have, therefore, not looked into or even opened the affidavits
presented on the part of the prosecution. The case will therefore
be decided as if there had been no affidavits on either side.

THE SENTENCE.

The Mayor. Mr. Hagerman, you have been convicted of
an assault and battery on William Coleman. This charge,
in some of the counts in the indictment against you, was
coupled with an intent to kill. The jury found you guilty
of the less offense, and acquitted you of the greater.

You assaulted Mr. Coleman in one of the public streets in
this city, knocked him down, and, while helpless and entirely
within your power, you chastised him, as though totally re-

HENRY B. HAGERMAN 623

gardless of his situation. You renewed, and again renewed
your attack, and continued the infliction of blows with a
severity and to an extent unwarranted and almost unex-
ampled.

On that occasion your conduct demonstrated an utter want
of feeling: you was under the control of strong outrageous
passions. You are a young man; and it is sincerely to be
hoped, from your good standing in society, from the character
you have hitherto, and until this unfortunate occurrence,
sustained, and from the respectability of your friends and
family, that you will learn to amend your conduct and
govern your passions.

On the trial, your counsel insinuated, that you had been
provoked to adopt this course, by a certain publication
against you, which appeared in the paper of the prosecutor.

Admitting that you had been provoked, as has been as-
serted, this is no justification of your conduct; and I wish
to impress on your mind, and hope that the audience will
profit by the admonition, that whatever may have been the
provocation, you should have restrained your passions.

In this community, the law is open for the redress of every
injury; and if, instead of having recourse to legal measures,
men, in pursuance of your example, should undertake to
avenge their own wrongs, the dominion of the laws would be
subverted, and disorder and confusion prevail.

Sir, there is no apology for you in the eye of the law : you
are guilty; and the insinuation of your counsel in your de-
fense, is entitled to no weight.

There is one consideration which has had an influence with
the court in lessening your punishment. It appeared on the
trial that a civil action against you for the same offense, of
which you stand convicted, is pending.

The sentence of the court is that you pay a fine of $250
and the costs.

Mr. Coleman had also brought a civil action against Hager-
man for assault and battery, laying the damages at $10,000.
It was tried on April 6th and 7th before Judge Ambrose

624 XIV. AMERICAN STATE TRIALS.

Spencer, Chief Justice of the Supreme Court of New York
and a jury.

The judge, in the course of his charge to the jury, in-
structed them that it was their duty to give damages to the
plaintiff on two grounds : first, for the injury to his feelings
and person, and secondly, for the sake of public example, to
deter others from the commission of similar offenses; and
that the conviction and fine in the sessions ought to go in
diminution of the damages on the score of public example,
but not on that for the private injury.

The jury rendered a verdict in favor of the plaintiff for
$4,000 damages.

THE TRIAL ALBERT W. HICKS, FOR PIRACY,
NEW YORK CITY, 1860.

THE NARRATIVE.

One evening in March, 1860, the sloop E. A. Johnson,
sailed from New York bound for Virginia to obtain a cargo
of oysters. On board were four persons only; the Captain,
Burr, the mate, Johnson and two young seamen named Watts.
The next morning the vessel was picked up in the lower bay
with not a soul to guide her and bearing evidence of foul
play. It was also evident, as the bowsprit had been carried
away, that she had been in a collision of some kind. The
cabin and deck were covered with blood and bore dire marks
of a fearful struggle.

The news of the tragedy soon spread through the city and
the next day the landlord of a rooming-house in a poor
quarter, reported to the police that a man named Johnson
who lived in his house had come home unexpectedly the pre-
vious day with an unusual amount of money which he said he
had received as prize money for rescuing a sloop in the bay.
He had left the night before on the Fall River boat with his
wife and child. He was traced to Providence and brought
back to New York. In his possession were found Captain
Burr's watch and some of his clothing; also clothing and
other things belonging to the sailors, "Watts. No trace hav-
ing been discovered of the three missing men, the fugitive
whose real name was Hicks, was indicted for their murder.
But at the same time he was indicted for robbery on the
high sea, which being also a capital crime, viz. piracy, he
was put on trial for that.

The evidence was most conclusive. He was identified by
several persons as being the Johnson who had shipped on
the oyster sloop. He was seen the next morning rowing to

(625)

626 XIV- AMERICAN STATE TRIALS.

the shore of Staten Island in the yawl belonging to the sloop.
Later he was encountered on his way to the city by persons
who noticed him carrying a bag and who saw that he had
a quantity of gold and silver which he afterwards exchanged
for bank notes with a broker, who clearly identified them.
The Captain's watch, his clothing and articles belonging to
the two sailors, were also proved beyond a doubt, and he
did not produce a single witness to contradict the case against
him. But he denied that he had ever been on board the
oyster sloop or had ever seen Captain Burr.

The jury very promptly returned a verdict of guilty.
Hicks for nearly a month maintained his innocence and then
broke completely down and made a full confession. He ac-
knowledged himself one of the most terrible criminals that
the history of crime records; from his youth a robber,
swindler, free-booter, mutineer and pirate. He had been
guilty of many murders and had up to this time led what
would seem to be a charmed life.

The day of his execution was like a fete day in the me-
tropolis of America. He had been sentenced to be hanged
on Bedloe's Island; a large steamboat was chartered by the
Federal authorities to convey to that place the criminal, the
officers of the law, the city politicians and their friends. It
was accompanied by a fleet of excursion boats loaded to the
water's edge. When he landed at the pier on the island,
small boats of every description covered the water every-
where and in the presence of thousands of spectators and
before him the sloop, E. A. Johnson, newly painted, her stern
close to the gallows and her decks and rigging alive with
human beings, he was swung into eternity.

THE TRIAL.1

In the United States Circuit Court, New York City, May,
1860.
Hon. David A. Smalley,2 Judge.

i Bibliography.* The life, trial, confession and execution of
Albert W. Hicks, the pirate and murderer, executed on Bedloe's

ALBERT W. HICKS. 627

May 18.

The Prisoner is indicted for having on March 21 last made
a violent assault on George H. Burr, on the high seas, on
board the sloop Edwin A. Johnson, and there feloniously and
piratically carried away the goods, effects, and personal prop-
erty of the said George H. Burr, who was master of that ves-
sel. The property consisted of about $150 in gold and silver
coin, a watch and chain of the value of $26, a canvas bag,
a coat, a vest, one pair of pantaloons, and a felt hat. Second
indictment is the same as the first, but charges the felony to
have been committed in the lower bay.

The prisoner was also indicted for the murder of George
H. Burr, master of the Edwin A. Johnson, and two seamen
named Oliver Watts and Smith Watts. As robbery on the
high seas is piracy, and punishable with death, the prisoner
was placed on trial for the robbery only.

He pleaded Not Guilty.

Island, New York Bay, on the 13th of July, 1860, for the murder
of Capt. Burr, Smith and Oliver Watts, on board the oyster sloop
E. A. Johnson. New York: Robert M. DeWitt, publisher, 13 Frank-
fort Street.

This pamphlet of 84 pages contains, in addition to the report
of the Trial, a history of the case, the prisoner's confession, made
after his conviction, "containing the history of his life, with a full
account of his piracies, murders, mutinies, high way robberies, etc.,
comprising the particulars of nearly one hundred murders." Also
his "phrenological character" by L. N. Fowler, Professor of Phre-
nology, a full account of his execution and the story of the pirate
Gibbs, executed 29 years previous on Ellis's Island for similar
crimes, and a poem in 10 stanzas, entitled "Blood for Gold; or the
Confession of Hicks the Pirate."

It has numerous woodcuts, as follows: Portraits of Hicks and his
wife, the boat in which he escaped from the oyster sloop, the deck
of the sloop and the blood stained cabin, portraits of Captain Burr
and Oliver Watts, a full page picture of the sloop, the detective de-
scribing the murderer's arrest to the reporters, the people of New
London making an attempt to lynch the murderer.

sSmalley. David A. (1809-1877). Born Middlebury, Vt. Admit-
ted to Bar 1831 and practiced in Burlington, Member State Legisla-
ture 1842; Collector of Customs, Vermont, 1857; United States Dis-
trict Judge, 1857-1877.

628 XIV. AMERICAN STATE TRIALS.

James J. Roosevelt,3 U. S. District Attorney; Charles H.
Hunt and James F. Dwight,4" Assist. Dist. Attys. for the
Prosecution.

Henry B. Graves and George W. Sayles for the Prisoner.

The following jurors were selected and sworn: Bernard McElroy,
Owen Foley, John Coulter, Geo. W. Jackson, Jas. C. Rhodes, Isaac
Jerome, Andrew Brady, Robert W. Allen, John Farrell, James N.
Fuller, John McCalvey, Benjamin Sherman.

MR. DWIGHT *S OPENING FOR THE PROSECUTION.

Mr. Dwight. You are empannelled, gentlemen of the jury,
to try the issue between the United States and the prisoner
at the bar, charged with robbery upon the high seas. Robbery
committed upon the high seas, or in any basin or bay within
the admiralty maritime jurisdiction of the United States, is
declared by the act of Congress passed in 1820 to be piracy,
and punishable with death. The indictment against the
prisoner charges him in the first count with having on the
21st of March last, on the sloop Edwin A. Johnson, committed
the crime of robbery upon George H. Burr, master and com-
mander of that vessel, and with having feloniously and vio-
lently taken from him a watch, a large sum of money, and
some wearing apparel. Robbery is the felonious and forcible
taking the property of another from his person or in his pres-
ence against his will, by violence or by putting him in fear.

s Roosevelt, James John (1795-1875). Born New York City; son
of Jacobus J., Jurist, Hardware Merchant; lived at No. 99 Maiden
Lane, later 45 Broadway, N. Y. Graduated Columbia Coll. 1815; ad-
mitted to Bar (1818); became partner of Peter Jay. Retired tem-
porarily from profession 1830; resumed practice 1831. Member
Legislature 1835-1839 and 1840. Member of Congress 1841-3. Jus-
tice State Supreme Court 1851-1859; resigned 1859. U. S. Dist.
Att. 1859-1860. Married May 30, 1831, in Paris, Cornelia Van Ness.
General Lafayette gave away the bride.

4 D wight, James Fowler (1830). Grad. Williams Coll. 1849.
Studied and practiced law in New York 1858-1860. Left legal prac-
tice 1861 and joined Union Army as Sec. Lieut, of Cavalry. Provost
Marshal General, Depart. Mo. 1863. Mustered out as Col. of Cavalry
1865 at New Orleans. Ap. Register in Bankruptcy N. Y. See "De-
scendants of Henry Dwight (1874) pp. 753-4.

ALBERT W. HICKS. 629

It is larceny accompanied by violence. The punishment, as
you will perceive, for the offense committed upon the high
seas, is different from its punishment when committed upon
land. It is to protect more effectually and punish more
thoroughly offenses occurring upon vessels upon the high seas,
where the protection for person and property is not so great
as it can be on land, where individuals are so much sur-
rounded by the police regulations to protect them and their
property. In this case, the prosecution will show to you,
gentlemen, that on the morning of Wednesday, the 21st of
March last, there was found floating in the Lower Bay of
New York a deserted vessel. Her strange appearance at-
tracted the attention of several vessels in that vicinity —
among others the steam tug Ceres, which bore down to her,
and the captain of which boarded this vessel. On reaching
the deck there was presented a most unexpected and fearful
sight. A state of great confusion appeared. The bowsprit
of the vessel was broken off, and its rigging was trailing in
the water. The sails were down, and the boom of the vessel,
which had been set, was over the side of the vessel. There
was no human being found on the vessel, and no light. For-
ward of the mast appeared a large pool of blood, which had
run down to some cordage and sticks at the back of the mast,
and also down the side of the vessel into the sea. This was
just aft the forecastle hatch, on which, or near which was
found some hair — a lock of hair. Amidships, and totally dis-
connected with this appearance of blood on the foredeck, there
was another large patch of blood, showing signs as if a body
had lain there ; this also ran down the side of the vessel. Still
further aft, just back of the small companionway, they found
traces of blood again, also disconnected with that in the
middle or forepart of the ship. Aft there appeared signs of
a bloody body having been dragged from the entrance to
the cabin. There was blood upon the rail and over the side,
and it seemed as if an endeavor had been made to wash it
off. On descending into the cabin, a state of still greater
confusion appeared there. The few articles of furniture
were disarranged. The companion-way steps were pulled

630 XIV. AMERICAN STATE TRIALS.

down and some of the sails which lay on the companion-way
were pulled out. The floor was wet and bloody, and bore
signs of having been covered in its entire extent with blood,
which had been washed off with water, probably brought in
the pail which was found there. Upon the handle of the
pail there was found some hairs, where the hand would
naturally hold it. These hairs were of different color to
those found in the other parts of the vessel.

The appearance on the floor and the disposition of the
articles lying in the cabin, together with the two auger holes
found bored in the lower part of the cabin, where the floor
slanted down, showed that an endeavor had been made in
washing the floor of the cabin to let the water run down.
The auger with which these holes were bored was found
there, and also some little chips which had been bored out of
the floor. It seemed as if the attempt had been given up in
the cabin, and the vessel had been abandoned afterwards.
There was a small stove in the cabin and a pile of wood
under which the blood had run. On the wood was lying a
coffee-pot or a tea-pot with fresh tea leaves in it. The side
of the tea-pot was indented and covered with human hair,
which was likewise black like that found on the pail. There
was nothing further than this to direct suspicion, and the
vessel was taken in tow by the Ceres and brought up on the
morning of Wednesday, the 21st of March, to the slip at the
foot of Fulton Market. On the affair being noised about the
town, the sloop was visited by a large number of persons;
among others by persons acquainted with the vessel and those
belonging upon her. It was found that this was the sloop
E. A. Johnson, owned at Islip, Long Island — a vessel be-
longing in this district, and commanded by George H. Burr,
who was also part owner. The sloop had been engaged in the
oyster trade in Virginia, and had recently come in, and had
on the 13th of March, a week previous, cleared from here to
go to Virginia for another cargo of oysters. The crew con-
sisted, when she cleared from here, on the 15th of March,
of Geo. H. Burr, master, two sailors — Oliver Watts and
Smith Watts — young men, brothers, residing at Islip, and

ALBERT W. HICKS. 631

the defendant, who, under the name of William Johnson,
had shipped as first mate. During the day a great number
of persons visited the vessel, and the daily press of the after-
noon and the following morning scattered broadcast all over
the city and its vicinity information concerning this affair.
The attention of the public finally addressed to this fact was
the cause of developing many slight circumstances, which
gradually formed themselves into a chain of circumstantial
proof directing the attention of the officers of justice to the
offender, and resulting in the arrest of this prisoner. It was
found that on Thursday, the 15th of March, the vessel sailed
from here, being chartered by one Daniel Simmons, an oyster
merchant of this place, living at Keyport, and one Edward
Barnes, living at Keyport, to go to Virginia for a cargo of
oysters ; that it went out for a cargo as I have described, and
that the captain had a large quantity of money in his posses-
sion to purchase oysters. The vessel went that week to Key-
port, lay there some time, and in the last part of the week
ran to Coney Island, and lay in Gravesend bay, waiting for
a favorable tide and wind till Tuesday afternoon. During
the Sunday, Monday, and Tuesday that the vessel lay there,
the captain, crew, and others went on shore at different times,
and one of the Watts boys had gone to Brooklyn on Monday
or Tuesday, and returned on Tuesday, and on his return the
vessel immediately proceeded to sea. The vessel had waited
with its sails up, if I remember correctly, for the arrival of
young Watts. He was taken off the beach in a yawl-boat
which was on board the vessel, and then she proceeded on her
Virginia voyage. It was watched by persons who belonged
to Coney Island, and also by two vessels lying at anchor at
the same time, some distance from Coney Island. This was
the close of the day — Tuesday about six or seven o'clock, if I
remember rightly. From that time until the next morning
only one thing is known of that vessel, and that by a connec-
tion of peculiar circumstances.

What was done upon that vessel during the night no mortal
man save the prisoner knows. Oliver Watts and Smith
Watts have never since that been seen in life. What became

632 XIV. AMERICAN STATE TRIALS.

of them we can only judge by those circumstances which are
thrown around by the appearance of the vessel and by the
conduct of the prisoner, and other circumstances connected
with him. Whether their bodies be in the sands of the lower
bay, or floated out to sea, and are tossed by the waves there,
we do not know. The prisoner fails to give an account of
them, and we can only suppose that they were murdered by
him and thrown into the sea. Next morning, Wednesday,
the 21st, the prisoner appeared upon Staten Island, with the
yawl-boat of this sloop. Except, as I say, by implication,
nothing is known in the meantime. The circumstances to
which I refer are these : The schooner J. R. Mather, Captain
Nickerson, was going from this city to Philadelphia, clearing
from here March 20, and running down the bay. Some time
during the night, between twelve and two o'clock, the vessel,
then being down off Coney Island, had a collision with a
vessel coming in. It appeared that the vessel going out saw
this sloop coming in, and on going within three or four hun-
dred feet, the course of that other vessel was changed, and
she run down directly to this schooner, as if to run across
its bow. That seemed to fail, and the course of that vessel
was again changed; but instead of running across the bow
of the schooner Mather, it seemed to fail, and struck the bow
itself, cutting it down within six or eight inches of the water 's
edge, and rendering the schooner incapable of proceeding to
sea, and it returned for repairs. There was the finger of
Providence again in that. On coming into this port the
captain of the schooner J. R. Mather found that the sloop
E. A. Johnson had come in, and by a comparison of the
rigging of her bowsprit, found on the bow of his boat, with
the rigging of the E. A. Johnson, that that was the vessel
which caused the collision. Further than this, nothing is
known of that night. There was no cry from the deck of
the E. A. Johnson when it encountered the schooner; there
was no hail, no attempt to disentangle themselves, and
nothing was known of what was going on upon the deck of
that vessel — whether there was a human being on it or not.
The captain of the sloop saw a dark form aft, but could not

ALBERT W. HICKS. 633

say whether it was one man or two men. He knew that some
person must have been on board, from the fact of her chang-
ing her course as I have described. On the morning of
Wednesday, the 21st of March, about six o'clock, the prisoner
came on shore at Staten Island, a little below Fort Eichmond,
which is in the Narrows, opposite Fort Hamilton. He was
seen very soon afterward, coming on shore, by a Mr. Neil-
dinger, whom he addressed, inquiring if his boat would be
safe, designating where he had left her, to which Neildinger
replied it would be all right, and the prisoner drew it upon
shore, where it would be a little safer. The prisoner had with
him a large canvas bag, which he carried upon his shoulders.
After leaving Neildinger, he passed up Staten Island, en-
countering one or more persons, whom he addressed, and
came to Vanderbilt's landing, arriving there shortly before
seven o'clock. He there inquired of the boat tender where
he could procure some breakfast, and was directed to a shop,
where he ate breakfast, and in payment offered to the boy
who served him a $10 piece, which the boy could not and did
not change, and he afterward gave him some silver. After-
ward, in conversation with Mr. Egbert, in charge of the sta-
tion there, he said he was a seafaring man ; that he had been
on the vessel William Tell in the lower bay; had had a col-
lision with another vessel; that the captain had been killed
against the mast, another person had been knocked overboard,
and he had merely time to escape from the vessel with the
money. He is described by that witness as being excited.
He took the ferry-boat Southfield, left there at seven o'clock,
and came up to the city. On the way up he entered into con-
versation with Francis McCaffrey, a deck hand. He pro-
duced before him a bag of money, and asked him to count it.
It was a canvas bag, and contained $30 in silver and a large
quantity of gold. McCaffrey counted it, and the prisoner
took possession of it again, and during the passage up had
some more general conversation with him.

On the arrival of the Southfield at the Battery, between
seven and eight o'clock, the prisoner took some refreshment —
a cup of coffee, I think, and then hired a small boy to take

634 XIV. AMERICAN STATE TRIALS.

his bag — a small canvas bag — filled with, clothing and other
articles, up to his house; it was taken up to his house in
Cedar street, and left there. The prisoner lived at 129 Cedar
street, with his wife; the other occupants of the house were
Mr. and Mrs. Burke. They had various conversations with
him during the day. During the morning the prisoner went
out, and at the shop of Mr. James, on South street, exchanged
the most of the money which he had (about $150), part gold
and part silver, and received in exchange bills on the
Farmers' and Citizens' Bank of Williamsburg. He made
the remark to Mr. James at the time, that he came honestly
by the money. Through the day he packed up his clothing,
and in the afternoon, with his wife and child, took the Fall
River boat, running from here up the Sound, and went up
to Fall River, telling the carman who took his baggage, if
any inquiries were made for him, to throw the inquirers off
the scent. From Fall River he went to Providence. The
whole or most of these facts coming to the knowledge of the
officers of justice, two persons followed on his track, and very
soon traced him from Fall River to Providence, and after
some search were enabled to find him there. He was arrested
on Friday night, the 22d or 23d March. They traced him
to a small house in the outskirts of the city, and at one
o'clock midnight obtained an entrance into the house, where
they found him in a back room in bed. The windows and
doors of the house were closed, and the defendant was found
concealed under the clothes of the bed, with his head covered
up. The officers withdrew the clothes, and found the de-
fendant there in a profuse perspiration and feigning sleep.
He was awakened, or pretended to be awakened, by the
officers. They said that they wanted to see him on a charge
of passing counterfeit money on the hackman who had
brought him to the house; he arose, and was asked to point
out his baggage. He described two trunks, which they took
with them. There were found on him a watch and a quantity
of money — among the rest, about $120 in bills on the
Farmers' and Citizens' Bank of Williamsburg, correspond-
ing with those exchanged for him by Mr. James of this city.

ALBERT W. HICKS. 635

The clothes were returned to this city, and next morning the
prisoner was brought here and lodged in the Second District
station-house. On his arrival, he was told that the charge
of counterfeit money was a mere feint, and that that was
not the real charge against him; to which he very coolly re-
plied that "he supposed so," or something to that effect. To
Mr. George Nevins and Mr. Elias Smith, the persons who
pursued and discovered him, he said he had no knowledge
whatever of the sloop E. A. Johnson ; had never known her or
Captain Burr, and had not been on Staten Island for many
months. These statements he has maintained to the present
time, constantly refusing to give any account of himself in
connection with this vessel, or of anything which transpired
on board of her after she left her anchor in Gravesend bay.
That denial, contrary to the truth, that he had ever known
Captain Burr, or ever been on the vessel E. A. Johnson, or
had been on Staten Island when he was charged with being
there, shows a full consciousness of the fatal effects of any
evidence tending to establish that fact if uncontradicted,
and in that contradiction he persisted. On being brought to
this city, he was confronted with various persons that he had
known before; with the man who carried his baggage; with
the deck hand of the Southfield, and with various persons
who saw him on the sloop Johnson; the watch found upon
him was, through the hand of Providence, identified as the
watch of Captain Burr, worn by him on the day of his
leaving this port. That watch the prisoner stated he had
had in his possesion for a long time ; that he bought it from
his brother, and paid a certain sum of money for it; and to
the other articles, he claimed that they were his, and gave
various accounts concerning them.

On the Monday following his being brought here he was
examined before a United States magistrate, was indicted,
and is now brought before you for the offense of robbery on
the high seas. I have thus briefly gone over the various
circumstances of this case as they will be produced to you
by the evidence. I deemed it necessary to state to you the
line of evidence that is intended to be pursued by the prose-

636 XIV. AMERICAN STATE TRIALS.

cution, that you may understand the bearing of each por-
tion of the testimony toward the rest. You will perceive
in this case one peculiarity. A great number of witnesses
will be examined for the government, and among these wit-
nesses there is a very slight connection, either with each other
or with the individual himself — particularly with each other.
Various witnesses will be produced before you from Islip,
Gravesend, Staten Island, New York, and Brooklyn, who are
unacquainted with each other, who each come up to add their
little fibre to this strong cord of proof which is thrown round
this defendant. Each little item of evidence is of no particu-
lar strength, of no decision in itself, but only forming a
strong chain, a perfect chain, as claimed by the government,
fixing without question and without doubt the guilt of this
offense upon the prisoner. Your attention, gentlemen, is in-
vited to this carefully and scrutinizingly, which scrutiny, I
feel convinced, you will give to it. It is a question of great
interest — it involves the punishment of a terrible crime. If
this prisoner is the true offender, the result may be very
serious to him. It involves a vindication of the law and the
punishment of a crime which he thought he had covered up ;
for there is very little doubt he thought he had sunk the
vessel by the collision in the Lower Bay ; and I think you will
say, as I have, in looking over the evidence, that the hand
of Providence, in marking the track this man was to pursue,
has placed upon that track the eyes of those who would come
up afterward to identify him. It seems strange in this
center of swarming thousands, at such a time of the day as
this prisoner escaped from that sloop, he could not have
hidden himself. It seems as though there was but one eye
to watch, and one instinct to follow and observe him. From
the very time that he landed on Staten Island until he went
to Providence, his whereabouts was known all the time. I
cannot explain either to you or to myself what it was that
caused him to be watched ; that he was watched and observed
will be shown. From the very commencement of his being
seen on the E. A. Johnson till he was brought here, every-
thing is known concerning him, save the twelve hours inter-

ALBERT W. HICKS.

637

vening from his sailing from Coney Island till the next morn-
ing. He has been called upon to give an account of the
property of the Wattses and Captain Burr — but he claims
it as his own. He has been called upon to give an account
of those men with whom he was, and who are no doubt
already dead; but he utterly disclaims any knowledge of
them or of the vessel upon which they were. That, gentle-
men, you will judge of on the trial. You will say whether
he is guilty of the triple crime, the double, bloody, damning
crime that occurred on the deck of that vessel ; and if so, as
jurors and citizens, whatever may be the result to him, and
whatever the punishment, I have no doubt but that your
verdict will be in accordance with the law and the facts.

THE EVIDENCE.

Selah Cowell. Know the sloop
E. A. Johnson; I built her,
owned one-half and Captain
George H. Burr the other. Saw-
prisoner on board the E. A.
Johnson on Wednesday evening
before she left at the Spring
Street dock. She cleared Thurs-
day, 15th, to Deep Creek, Vir-
ginia, for oysters; the crew con-
sisted of Captain Burr, Oliver
Watts and Smith Watts and the
prisoner, as mate. Captain
Burr was about thirty-nine; Oli-
ver Watts about twenty-four and
Smith Watts about nineteen. Cap-
tain Burr was dark; Oliver
Watts had very light hair and
Smith Watts had dark brown
hair. I saw the E. A. Johnson
at the Battery when she was
brought in; saw the yawl boat
of the Johnson with the harbor
police; she had that yawl boat
before she left. On examining
the Johnson I found a black
canvas valise and some clothes;
brought them here, found the
things now in it and a knife in
it.

Cross-examined. I never saw
Captain Burr since. Oliver Watts
was a large man, about 170
pounds; Smith Watts perhaps
180 pounds, very large for his
age; Captain Burr was a small
man, not more than 125. The
Watts boys were on board the
sloop the Wednesday evening
before she sailed. When de-
fendant was on board on Wed-
nesday evening he was dressed
with a blue shirt and overalls
like those I found in the vessel.
I took supper there. The pris-
oner was at supper also.

John A. Boyle. Am enrolled
and licensed clerk in the Custom
House; the E. A. Johnson was
enrolled on 3rd December, 1858,
as an American vessel.

Daniel Simmons. Know the
sloop E. A. Johnson. Chartered
last Spring from this port to
Virginia for oysters on 14th
March. She left here last on
Thursday morning 15th March.
Settled with Captain Burr for
his charter on 14th March; gave
him $200 in silver coin, quarters,

638

XIV. AMERICAN STATE TRIALS.

halves and ten and five cent
pieces. In gold, two tens, two
fives, a two and a half, one dol-
lar in gold and a half dollar in a
shot bag. Did not know where
the Captain used to keep his
money; there was a secret draw-
er in the shop where I kept mon-
ey when I sailed with him. Have
seen that bag since when it was
taken out of the prisoner's pock-
et at the station-house. At the
Station-house when he was
brought from Providence I asked
him if he had ever seen me be-
fore; he said he had not. Cap-
tain Weed asked him if he knew
me and he said he did not. Told
him I saw him on board the E.
A. Johnson at Spring street
dock; said he never was there
and did not know there was
such a vessel; asked him if he
knew Captain Burr, he said he
did not, that he never saw him
and never was on board the ves-
sel. When I saw prisoner on
board the sloop his whiskers
were red and full, when I saw
him after his whiskers were
darker.

David S. Baldicin. Know
prisoner; saw him on board the
sloop on 13th March; he was
helping to get out oysters; told
me that he was going to Vir-
ginia with Captain Burr for a
load of oysters; that if I wanted
to go up town he would stay on
board and mind the vessel; I
was cook; this valise I saw be-
fore; the prisoner handed it to
me when he came on board on
the 13th; prisoner did not stay
on board that night; I saw this
knife before with the prisoner,
on board; saw prisoner on Wed-
nesday morning on board the
sloop at breakfast; did not see
bim again until to-day.

Cross-examined. I left the
sloop on Wednesday; Smith
Watts took my place as cook;
prisoner first came on board be-
tween six and seven Tuesday
morning; never saw him before.

James H. Bacon. Am in the
oyster business; prisoner I saw
on the E. A. Johnson on the
13th March; was there two days
getting out oysters; Johnson
was there shoveling out oysters;
he wore his whiskers same as he
does now; he had a check shirt,
short coat, and comforter about
his neck; next saw him after his
arrest, when I was called on to
identify him.

Reuben Keymer. Saw prison-
er the day before he sailed
from Gravesend; he came
ashore after one of the Wattses
just at sunset. Prisoner and
Watts returned to the sloop in a
yawl boat. Prisoner was dress-
ed in a coat of the description
of the one produced; watched
the sloop going out; she went
south-west to clear Coney Island
and then took a southerly
course.

Cross-examined. Was not well
acquainted with any of them ex-
cept Captain Burr; am certain
the prisoner was the same man
who sculled the yawl.

Charles Baker. Knew Captain
Burr and the sloop E. A. John-
son; saw her in March last at
Gravesend bay; knew Smith and
Oliver Watts by sight. Saw
prisoner come ashore and take
away some of the hands, saw
the sloop go away after pris-
oner and the young man got
on board; Captain Burr was on
board; there were four on board
altogether.

John 8. Whitworth. Saw pris-
oner at Gravesend Beach on

ALBERT W. HICKS.

639

19th or 20th of March last; he
came ashore in a yawl boat;
was painting a vessel at the
time; the boat was not more
than a few minutes there when
I saw her go back again toward
the E. A. Johnson which was
about 100 or 120 yards off; saw
prisoner on the day following,
he came ashore in the yawl
boat; think he had a monkey
coat on on Tuesday.

May 19.

Richard Eldridge. Saw Cap-
tain Burr and the two Watts
boys and Johnson on board the
sloop Johnson; went out in the
Sirocco in company with the
sloop, Johnson, past Coney
Island, up to the Health Office.
Captain Burr, the two Watts
boys and Johnson were on
board when she left; she went
on the usual course of southern
vessels. Took a letter from
Captain Burr to his home.
Johnson wore a beard same as
now but no mustache on the up-
per lip.

George Neidlinger. Live on
Staten Island at Port Richmond,
saw prisoner at six on the
morning of 21st March; asked
me if there was anyone to in-
terfere with his boat and I
said, no. He left his boat on
the south side of the fort and
he came from that direction. He
had on a monkey jacket with a
Kossuth hat; he had a feed bag
which he carried on his shoul-
der.

Michael Dumin. Know pris-
oner; saw him on 21st March; I
was going down to Port Rich-
mond and met him with a bag
on his shoulder.

Augustus Chiisler. Attend bar
at Vanderbilt's Landing; know
prisoner; saw him on Wednes-

day morning, 21st March; came
to our shop and said he wanted
something to eat, he asked me
if I had any coffee and I said I
had not, but told him where to
get it; he went out and came
back again and said they were
not up; he asked for eggs and
invited Mr. Hickbert to take a
drink. He showed me a $10
gold piece and asked me if I
wanted it. I said, "No sir, I
have not change for it"; he then
took some silver and paid me.
The coat he had on was like
that produced, it had patches on
the elbow like this. He told
Mr. Hickman he was Captain of
a sloop, that he had been run
into and one man was killed
and another knocked overboard;
he said he was downstairs asleep
at the time and had only time
to get his clothes and the "need-
ful" (at the time shaking the
bag) and come ashore in the
yawl.

Abraham 8. Hickbert. Saw
the prisoner on 21st March, at
the Vanderbilt ferry, at about
half-past six; he asked me
where he could get something
good; I showed him; he went in
and asked Augustus, the bar-
keeper. He told me that the
vessel he was on was the Wil-
liam Tell; that he had been run
into by a schooner, and one man
was killed against the mast, and
another knocked overboard.
Prisoner shook a bag in his
hand when he said he had only
time to save the one thing need-
ful.

Cross-examined. Had never
seen him before, to my knowl-
edge; cannot tell exactly how
he was dressed, nor whether he
had whiskers.

Franklin E. Hawkins. Am cap-

640

XIV. AMERICAN STATE TRIALS.

tain of the sloop Sirocco; saw
the prisoner on board the E. A.
Johnson; my vessel was lying
at Coney Island, and the sloop
Johnson was lying at the same
place; on the Sunday before she
sailed I went out with her;
Johnson came ashore in the
yawl boat on the evening be-
fore the sloop sailed.

Patrick McCaffrey. Am a deck
hand on the Staten Island ferry-
boat Southfield; know prisoner;
saw him in the gentlemen's cab-
in about seven on the morning
of 21st March; asked me if I
was a judge of this country's
money; that he was afraid them
fellows were cheating him; I
said I was a pretty good judge
of gold and silver, but did not
know much of bills; he asked
me to count the money; I count-
ed out three or four gold pieces
and told him what they were;
the bag was a kind of a shot
bag; he told me to mind his
canvas bag and he would give
me the price of my bitters; my
attention was particularly called
to the coat by it being bare in
some places and having patches
on the elbow. Next saw pris-
oer in station-house, he denied
ever having seen me; when I
saw him I said, "there's the
man."

Cross-examined. Had never
seen him before I saw him on
the Southfield; he had whiskers
up to his ears but no moustache;
his whiskers were blacker than
they are now.

William Drumm. Met the
prisoner on a Wednesday morn-
ing, about eight o'clock; at the
South ferry; about 21st March;
saw him at a coffee and cake
stand kept by Charley McCos-
ten; he got a cup of coffee and

a piece of pie; he put down a
gold piece, and the man said,

"Oh, . have you no smaller

change than that?" he then gave
him something else. Carried
Johnson's bag to the corner of
Cedar and Greenwich streets;
asked him fifty cents, and he
gave me three shillings, and
said if I did not go out of that
he would kick me; there was a
Dutchman there who told him
two shillings were enough;
pointed out the prisoner on the
following Sunday, in the station-
house.

Cross-examined. Testified be-
fore the commissioner that the
bag was very heavy and cut my
shoulder, and that it did not
seem to be filled with clothes;
saw him first at the coffee
stand; he wanted a carriage
first.

Patrick Burke. William John<
son had a room from me in Ce*
dar street near Greenwich; saw
him on Wednesday before his.
arrest about four o'clock; saw
some bills with him that day;
he went away by the boat that
evening; he took his wife and
child with him; he left a ship's
instrument (a compass, I think)
behind at my house; he always
paid me my rent like an honest
man.

Catherine Burke. Am wife of
the last witness. Johnson did
not say anything about what
voyage he was going on the last
time he went to sea; had seen
prisoner with money on previ-
ous occasions.

Albert S. James. Am a brok-
er; saw prisoner on Wednes-
day 21st March at my office;
asked me to take some silver at
as low rate as possible; changed
about $135 in silver and $35 in

ALBERT W. HICKS.

641

gold; it was in a bag and tied
up in a handkerchief. I gave
him $130 in Farmers' and Citi-
zens Bank of Williamsburg,
Long Island; tens, fives, threes
and twos.

Richard O'Connor. On 21st
March took his baggage to Fall
River boat. He told me if any-
one inquired where he was go-
ing to tell them it was none of
their business.

George Nivens. Am officer of
second precinct; understood a
man answering prisoner's de-
scription had left in the Ston-
ington boat but traced him to
Providence where I arrested him
in a boarding-house; found him
in bed with his wife; shook him
up and searched him; found on
him a watch; took away two
trunks, two bags, two handker-
chiefs and a knife, a pocket-
book and some bed-clothing
which he claimed to be his* I
found in the pocket-book $121 in
bills on the Farmers' and Citi-
zens' Bank of Williamsburg,
mostly fives and tens. First I
told him I arrested him for pass-
ing counterfeit money. He told
me that the watch belonged to
his brother; said he had not
been in New York or Staten
Island during the month of
March; that he had been specu-
lating about the market and had
about $60; at another time he
said he got the money from his
brother. He denied all knowl-
edge of Captain Burr and the
sloop E. A. Johnson.

Elias Smith. Was with Nev-
ins when he made the arrest;
am a reporter of the Times.
The prisoner denied all knowl-
edge of the sloop E. A. John-
son or Captain Burr; said he
had not been in New York for

two months. I said to him:
"You are charged with imbruing
your hands in the blood of three
of your fellow men for money;"
prisoner shook his head ana!
said, "I do not know anything
about it;" then said to him,
"You have been on board the
sloop Edwin A. Johnson;" he
shook his head and said he did
not know anything about it, and
was never on it; Mr. Nivens
read the newspaper accounts of
the transaction to him; he said
he did not care much about the
arrest except for the interrupt
tion to his business, as he had
purchased a place in Provi-.
dence; I told him he would be
identified when he got to New
York; he said we might think
what we liked; he seemed an-
noyed at our pressing the sub-
ject.

Cross-examined. I said to him,
"If you are innocent, then you
are willing to go back to New
York?" after hesitating he as*
sented.

Samuel Downes. Am captain
of the steam-tug Sirius; picked
up the sloop E. A. Johnson on
the East Bank about six o'clock
in the morning; brought her to
this city; the bowsprit was
broken off about midway; the
jib hung overboard; there was
no small boat on board; board*
ed the sloop, there were pools
of blood on the deck and the
cabin appeared as if some one
had been slaughtered there;
there were marks of a hand as
if struggling and then there ap-
peared to be a blow of a hatchet
where the hand mark was, as if
it was cut; the blood flowed
down to the scuppers; there
were evidences of a scuffle. There
was a mark of a foot in the

642

XIV. AMERICAN STATE TRIALS.

blood as if some person with a
boot or shoe had stepped in it;
seemed as if some person had
been dragged from there and
thrown overboard; there was
some hair found in the pool of
blood forward, it was dark
brown hair.

Hart B. Weed. Am captain
of the Second District police;
examined the clothes brought by
Nivens from Providence; there
were coat, pants, vest, and some
flannel clothing contained in a
bag used for feed; a daguerreo-
type in the bag; I sealed it up
and gave it to the clerk of this
court. (Is said to be that of
the sweetheart of one of the
Wattses.) Was at the station-
house when prisoner was
brought there; he said he knew
nothing about it; asked him if
be knew anything about the ves-
sel or the murder, and he said
he had not been in New York,
Staten Island, or Long Island
for some time; Dr. Bouton, the
coroner's assistant, accompanied
me to the sloop; we found a lock
of brown hair lying partially in
a pool of blood on the deck;
also found hair on the coffee-pot
in the cabin.

The cabin had a great deal of
blood and had all the appear-
ance of being washed down; I
found a bucket, with a rope,
which appeared to be used in
taking up water; there was
blood and hair on the rope at-
tached to the bucket; there were
holes bored in the deck; we
Pound an auger with blood on
it; the auger fitted the holes in
the deck; found cuts on the
clothing of the captain's berth;
the railing had the appearance
as if a hand was on it and had
been cut; saw marks which

seemed as if a person with
bloody clothing had been shoved
down the side of the vessel;
there was blood on the stove
and wood in the cabin; the
cabin was in a deranged condi-
tion.

Cross-examined. (A shirt and
linen coat produced). — These
are the clothing we found in the
captain's berth with cuts on
them; there was no blood on
them nor on the bed; they had
the appearance of being clean
and folded up; examined the
prisoner to see if there were any
marks on him; found no fresh
marks of violence on him; on
his arms I saw the figure of an
eagle printed in India ink.

Theodore Burdett. Belong to
the harbor police; found a boat
about seven 22nd of March, the
day after the sloop was brought
up to city, fifty yards to the
southward of Fort Richmond.
Hickbert and Gresler gave me
information where I could find
the boat. Mr. Selah Howell
claimed it and took it away.

Samuel J. Conover. Am a
watchmaker, doing business with
Mr. Squire. Remember repair-
ing a watch about a year ago
for a person named Burr. It
was not brought to me by Burr.
It was a double-case silver,
watch. The maker's name, J.
Johnson and the number 21310.
(Looks at the watch.) This is
the watch that I repaired.

Cross-examined. In giving a
description of the watch and its
number I am aided by a record
which we keep at the store; the
record is in my handwriting.

Henry Seaman. I know Cap-
tain Burr's watch; had it in my
hand on Tuesday at my house
and he, Captain Burr, took it

ALBERT W. HICKS.

643

away that evening; recollect
leaving Captain Burr's watch to
be repaired at some store in the
Bowery a year ago last April;
know it by its general appear-
ance and by the guard and the
way the guard is knotted. Knew
the sloop Johnson and its yawl-
boat; saw the yawl-boat at the
police station after the sloop had
been towed into the city.

Cross-examined. I left the
watch at Mr. Squire's store to

be repaired; did not go for the
watch; remember the number oi
the watch, 21310.

Mr. Conover (recalled and
produces the watch j. It is as
follows: Mr. Burr, D. B. silver
watch, J. Johnson, Liverpool,
21,310. Did.

Catherine Dickenson. Seven*
teen years of age. I knew 01i->
ver Watts; saw him last on the
Tuesday of the week he sailed;
I gave him my daguerreotype.

Mr. Graves objected to this testimony.

The Coukt said he deemed the evidence was proper and import-
ant; it had been proved that a daguerreotype was found in a coat,
and if the prosecution can prove that that coat belonged to young
Watts, and that this is the daguerreotype this witness gave him,
it will go far to connect the prisoner with the trantsaction on board
that sloop. The evidence is not only eminently proper, but very ma-
terial and important.

Miss Dickenson. When I gave
him the daguerreotype he put it
in his coat pocket; saw that
coat since in the District Attor-
ney's office; I think this is his
coat and this the pocket he put
it in; (daguerreotype produced) ;
this is the same one I gave him.

Harriet Robinson. Am mother
of the last witness; knew Oliver
Watts for three or four years; he
used to stay at my house when
home from sea; he wore on that
Tuesday his best coat; I should
suppose this (the coat in which
Captain Weed found the da-
guerreotype) to be the coat;
know it from the lining, etc.; he
said he gave $16 for it.

Abbey Hubbard. Am the
mother of Smith Watts; on 7th
March he started to go with
Captain Burr to Virginia (iden-
tifies a portion of the clothes
belonging to her son; patched
this shirt myself; this bag has
the initials of my present hus-

band, Lorenzo Hubbard, on it;
put my son's clothes in it that
morning myself; knew the
shirts; I cut them myself, and
had them sewed; he was very
large, and could not get shirts
to fit him; I have had no tidings
of him since, only that I suppose
he was murdered. This was
Smith Watts' handkerchief; I
have washed and done it up for
him for two years, and never
saw one like it.

Dideme Bun: My husband
Captain George H. Burr left
home on 8th March last, have
never received any tidings of
him since; should know his
watch from the case and its gen-
eral appearance and the guard;
this, I should say is the same
watch. Saw some of his clothes
in the Second Ward station
house; he had a hat like this
which he wore from home. This
was his shirt; those pantaloons
I think were his. This black

644 XIV. AMERICAN STATE TRIALS.

hankerchief was his, I hemmed compared exactly with what
it myself. was still left on the bow of the

May 24. vessel; the schooner was said to

Catherine Dickenson (re- have come in collision with the
called). Have had hair from E- A- Johnson.
Oliver Watts in my possession; Mr. Hunt stated that the gov-

it was in his daguerreotype ernment had no further testi-
which I gave to some one in the mony to offer with the excep-
Btation-house; this daguerreo- tion of that of Captain Nicker-
type and hair now handed to me son of the Mather which he
are the same; knew this to be deemed highly important and
Oliver's hair because I cut it off material. He thought that the
myself. reading of the testimony of Mr.

The daguerreotype and hair Nickerson taken before the
of Oliver Watts were submitted Commissioner would be sum-
to the jury to compare with the cient, if assented to by the
hair found in the blood on the other side,
deck of the sloop. Mr. Graves said they had not

George Washburn. Took some been able to agree with the
riggings from the J. R. Mathew counsel for the government as
and fitted it to the broken bow- to the evidence of Captain
sprit of the E. A. Johnson; it Nickerson.

May 25.

Mr. C. H. Hunt. We have to inform the Court that Capt. Nicker-
son, whose testimony we were anxious to obtain, has not arrived,
and we do not suppose we shall have his testimony today. It is
proper I should state, also, that we have never regarded his testi-
mony as indispensable in any sense, for if we had we would not
have consented to proceed with the trial without his being present.
We have, however, regarded his testimony as very important, as
giving completeness to the chain of facts which we had it in our
power to present to the Court and jury; and in this view of the
case perhaps we were anxious that the testimony snould not be sub-
mitted on the part of the government without that link in the
chain. We now feel that we have done all we could to procure this
testimony, in order to give the evidence such completeness as is in
our power, and we do not now feel like asking the Court for any
further delay in order to procure the testimony of Capt. Nickerson.s

THE SPEECHES TO THE JURY.

Mr. Sayles said they had no witness for the defense, and
then proceeded to address the Court and jury on behalf of

s Captain Nickerson would have testified that the ill-fated sloop
had run into his sloop, the John B. Mathew, early on Wednesday
morning, at which time only one man was seen on board, and this
man was subsequently observed to lower the boat from the stern,
and leave the sloop. This collision took place just off Staten Island,
and was so severe as to render the John B. Mathew unfit for sea.

ALBERT W. HICKS. 645

the prisoner. He commenced by describing the sensation
created in this city by the intelligence of this transaction,
and that the public press had given a description of and
directed the eye of the community to this one man. He
then suggested that this tragedy may have been perpetrated
by river thieves who have been driven to the lower bay by
the Harbor Police, and who, perhaps, committed a similar
one on another sloop on the same night. Counsel said, in
cases of admiralty this court had a limited and special juris-
diction, derived from the laws of Congress passed under the
Constitution of our country, which gives power to define and
punish felony and piracy on the high seas. This court, there-
fore, had so much power, and no more. It had no common
law jurisdiction. (He then cited several authorities.) He
claimed that a portion of that act of Congress was uncon-
stitutional; that Congress had no right to define and punish
felonies on the high seas; it has no power to take away the
rights of individual States to punish the crime for which
this man stands charged. It was committed beyond the juris-
diction of the court, and it had no power to punish for this
felony. He then read a reported case where an act of piracy
had been committed in Boston harbor, and in which it was
held that it should be tried in the courts of that State.

The Court. This was not a question for the jury, but
should have been on demurrer, or might be brought up on a
motion in arrest of judgment.

Mr. Sayles. The jury were the judges of the law and the
facts.

The Court. Not on questions of jurisdiction. Those ques-
tions are always for the Court — for its decision.

Mr. Sayles. "On the high seas" meant either in the har-
bor of some foreign country, or beyond any portion of a coast
where the sea ebbs and flows.

The Court. This was the opinion of English lawyers, but
did not apply to American laws.

Mr. Sayles said — We have adopted the English common
law.

The Court. Only to a limited extent.

Mr. Sayles cited from Chitty's Criminal Law, "that the

646 XIV. AMERICAN STATE TRIALS.

piracy must be distinctly proved to have been committed on
the high seas, or the defendant is entitled to an acquittal."
According to that law the admiralty had no jurisdiction
within the limits of any county or city. The counsel then
proceeded to appeal to the reason of the jury, and lay the
facts before them. It was a case of great importance, not
only to the federal government and to the community, but
also to the unfortunate prisoner at the bar, and he called
upon the jury to elevate their minds above outside prejudices.
A supposed tragedy had been committed in the lower bay,
and the government had undertaken to show, by circumstan-
tial evidence, that this is the man who perpetrated it. Coun-
sel referred to the nature of circumstantial evidence, and
alluded to the recent case in this court where some half dozen
witnesses swore positively to a man named Williams for post-
office robbery, and subsequently swore as positively against
another man, who was convicted.

Mr. Graves referred to the case of the two Bournes, (Am.
St. Tr.,) in Vermont, who confessed to the crime of murder,
but were afterward proved to be innocent. The evidence
against Hicks was entirely circumstantial, and of such a char-
acter as to render it very uncertain ; but the most astonishing
thing about the prosecution was the charge that this one
man should kill these three men, powerful as they were, and
not receive a single scratch. There must have been a terrible
struggle; blood was spattered over the ceiling, blood every-
where, but no blood on him, no mark of violence on his
person.

Mr. Hunt. The only questions of law upon which there
had been any dispute, were ruled upon by the Court, and I
have nothing further to say.

Mr. Dwight had hoped that there might have been some
chance of the innocence of the prisoner found in the course
of the trial. But he had been disappointed; nothing which
had been asserted by the witnesses for the prosecution had
been contradicted. No attempt had been made to break
any one link in the chain of the evidence. The defense
would endeavor to induce the jury to believe that Capt. Burr

ALBERT W. HICKS. 647

parted with his watch, which he had carried for nine years,
to a pawnbroker; that Smith Watts had parted with the
clothes which his aged mother had put up for him; that
Oliver Watts had parted with the daguerreotype of the girl
he loved. The time had not yet come when Yankee sailor
boys gave up the pictures of "the girls they left behind
them" without a struggle.

Mr. Dwight reviewed the whole case and the testimony,
giving a graphic description of that dread night when this
triple deed of blood was perpetrated, and concluded: Gen-
tlemen, I have occupied your time longer than I intended,
and I have but one word further to say. If this prisoner is
not proven guilty of the crime against him, he is of course
an innocent man. If there is in the breast of any of you one
doubt concerning his guilt — one reasonable doubt as to his
having committed this robbery of George H. Burr, as set
forth in the indictment, in God's name give him the benefit
of that doubt. It is his sacred privilege, and it is just as
much his right as he has a right to his life or his liberty.
If you have any doubt upon considering the evidence, give
him the benefit of that doubt, or any which you may have.
But, gentlemen, if through the five days of this trial there
has crept into your minds a conviction that he is the man,
and if that conviction has been strengthened by the evidence
which has been adduced and placed before you — that no
other but he had committed this crime, then I say that his
conviction is the property of the government, and I charge
you to give it to the government. Here, in your seats, where
you have sat during these five days listening to the opening
and the testimony, and the closing upon the part of the
government — here, in your very seats, I charge you to give
the benefit of your conviction to the government, and I
charge you to do this in your jury box without any hesita-
tion. Gentlemen, there was no hesitation on his part; with
that sharp axe he cut down the fair-haired boy, Watts; and
then returned and felled the other: and then the death
struggle with the captain occurred. Gentlemen, there was no
hesitation there; and if you are convinced of his guilt, let

648 XIV. AMERICAN STATE TRIALS.

there be no hesitation in your rendering in your jury box a
verdict against him. There cries from the sands of Islip,
"justice;" from that widow and from that mother. There
comes up from the depths of the Atlantic, "from all the ships
that float on it, and all that go down in the great deep" —
there comes the cry of "justice." The prisoner equally calls
upon you to do justice; and gentlemen, I ask you, in the
name of the government, if you believe him guilty of this
crime, which he committed speedily, summarily and devil-
ishly, that you will let your verdict be speedy, summary and
just.

THE JUDGE'S CHARGE, VERDICT AND SENTENCE.

May 26.

Judge Smalley told the jury that the case was clearly
within the jurisdiction of the court, the occurrence having
taken place in the harbor.

The Jury retired and after an absence of seven minutes
returned with a verdict of Guilty.

Several days later a motion for a new trial was argued and denied
and sentence to death pronounced, the day fixed for the execution
being Friday, July 13 on Bedloe's Island.

THE CONFESSION.

After his conviction, he continued for some time to deny his
guilt but on June 13 he told Deputy Marshal Angelis that he was
ready to confess the crime.

Accordingly an amanuensis was procured and to him Hicks die-
tated his story. He said he was born in Foster, R. I., on a farm,
that he had no taste for work and as a boy often stole things for
which he spent several terms in jail. He ran away from home,
worked a while in a shoe factory and then went to sea on a whale-
ship. On the voyage the crew mutinied, left the ship at Wahoo and
engaged in the robbery and murder of the natives. Captured and
imprisoned, after his release, he shipped on a Dutch vessel where
he led another mutiny and reached lower California where he be-
came a guerilla and freebooter and a frequent robber and mur-
derer. He then went to the gold mines where he ran a gambling
house, shipped again on another vessel and again became a muti-
neer and a pirate; came back to America, got on another ship
which he and his companions took from the officers and started on
new piracies, which lasted for several years. He then (about four

ALBERT W. HICKS. 649

years ago) returned to New York where he engaged in numerous
robberies at the docks and elsewhere. His last crime he describes
as follows:

"In New York, I was careful of doing much, and was all the
while on the lookout for some enterprise in my favorite field of
action — the sea. I kept a sharp lookout for all small craft outward
bound for cargoes of fruit, oysters, etc., and in a quiet way gathered
all the information I could in regard to the number of hands they
shipped, and the amount of money they generally carried. During
my searches I came across the sloop E. A. Johnson, Captain Burr,
and in making application Was engaged on board of her.

I come now to the closing acts of my life, to the last scenes in my
wicked and bloody career. From my youth up I lived by crime.
I have steeled my heart against every good impulse. I have con-
sidered mankind my natural prey and have never hesitated to grat-
ify my appetites, passions, and desires, no matter how dear the
sacrifice paid by others for their gratification, and now society
which I have so long outraged claims the only recompense I can
make for all the wrongs I have committed; the law, which to me
has ever been a subject of scorn and derision, now exerts its ma-
jesty, and calls on me to pay the penalty due for breaking it; man-
kind, against whom I have so long waged a bloody and resistless
war, now clamors for my blood, in compensation for the innocent
blood I have so often shed. Justice at last asserts her sway, and a
dreadful punishment awaits me. But let me go on to the end.

The sloop E. A. Johnson offered an easy prey. She had on board,
I supposed, from all information I could gather, something over a
thousand dollars, and the entire crew consisted of but two boys and
myself. I had never known or seen Captain Burr before I shipped
with him. He had never done me injury or wrong, so that I had no
revenge to gratify, no grudge to pay. He seemed a kind and amia-
ble man, and would, I have no doubt, awakened kindly feelings in
any heart but mine, and even I liked him. Yet I engaged myself
to him solely, and only for the cruel purpose of taking his life,
the lives of the two young men, and making myself master of the
money I supposed he had on board.

I calculated to do this as calmly as you would contemplate doing
any of the usual duties in the ordinary transactions of life. I had
killed men, yes, and boys, too, many a time before, for far less
inducement than the sum I supposed I should gain by killing them;
and I had too often dyed my murderous hands in blood in days
gone by to feel the slightest compunctions or qualms of conscience
then. I never thought of the consequences of such a crime. The
fear of detection never once crossed my mind. I had too often
done the same thing with impunity to believe that a day of reckon-
ing would ever come, in this world at least, and I never gave a
thought to the world to come.

After engaging with Captain Burr I went home to my wife at 129
Cedar street, and lying down on the bed, told her not to disturb me,
as I wanted to take a long sleep, and if any one came for me,

650 XIY. AMERICAN STATE TRIALS.

to say that I was not in. She left me alone, and I then deliberately-
matured all my plans. I marked out the course I intended to pur-
sue exactly, and after I had decided upon everything, I went to
sleep and slept as soundly as ever I slept in my life, my mind was
so much at ease, and I felt so contented at the idea of having at last
an opportunity of making some money in an easy way. The next
day I went on board and commenced my duties, and in order to in-
gratiate myself into the good graces of the captain, I did even more
than could have been expected of me. We sailed on the sixteenth of
March from the foot of Spring street, and proceeded to Keyport,
where we remained till Sunday. While here, I scraped the mast of
the sloop, did a lot of carpenter work, and evidently pleased Captain
Burr very much by my earnestness in trying to make everything
look ship-shape. We arrived at Gravesend on Saturday afternoon,
and waited there for a fair wind. At last we put to sea, and when
we were off the Ocean House, I went to the forecastle, and got an
axe, which I put in the boat hanging to the davit aft. The younger
Watts was at the helm, and I asked him to allow me to steer a little
while. He consented, and went forward.

In a few minutes I left the helm, and taking the axe, went to him,
and asked him if he saw Barnegat Light. He said he did not. I
told him to look again, and pointed with my hand. He turned round
and looked in my face a moment, but even if he had suspected
my cruel purpose, he would have read no indication of it there,
for I was as calm as though I were going to do the simplest and
most innocent thing in life. Had I been under human influences,
the confident and trusty way in which he turned his eyes to mine,
would have made me hesitate, but no such thought entered my
heart, and I pointed again and told him to "Look there; ain't that
it?" He turned his head, and peered through the darkness in the
direction I pointed, and as he did so, I struck him on the back of
the head with the axe, and knocked him down. He fell! Thinking
I had not killed him, I struck him again with the axe as he lay
upon the deck.

His fall and the sound of the axe made some noise, which,
added to that caused by my running across the deck, attracted
the attention of the captain, who came up the companionway,
and putting out his head, asked what was the matter? I replied,
"nothing," and then asked him, as I had the younger Watts, "is that
Barnegat light?" Captain Burr replied, "No, you will not see it for
two hours;" and as he spoke he turned his head from me. The axe
swung in the air, and, guided by my sinewy and murderous arm,
came down. The edge crunched through his neck, nearly severing
his head from his body, and killing him instantly. The body fell
down the companionway.

As I turned to leap after it, and dispatch my remaining victim, I
looked forward, and — Oh, God, how I shudder to think of it now!
— he whom I thought I had already killed had risen and was com-
ing aft, his hand outstretched toward me, and the blood running
in two dark streams over his pale face, from two ghastly wounds on

ALBERT W. HICKS. 651

his head. For a moment I stood undecided, but as he still came on,
I ran toward him, but ere I reached him he fell about midships, and
rushing on him, I struck once! twice! thrice! with the axe, and fin-
ished him. Running aft, I jumped down the companionway with
the bloody axe in my hand.

There lay the elder Watts in his berth, and close beside him the
ghastly, bloody corpse of the captain. I stood a moment looking
at him, and dashed at him and struck out with the axe. He leaped
out of his berth and sprang at me, all red with the blood of the
captain, whose body had fallen past him, covering him with gore in
its fall. He tried to grapple with me, but stepping back, I gave the
fatal axe a full swing, and struck him again, again, and again, once
upon the head, once on the back and once more upon the head,
which felled him to the floor, and he lay dead at my feet, side by
side with the captain.

My bloody work was done! Dead men tell no tales. I was alone.
No eye had seen me, and now I was free to reap the reward of my
work. I did not feel the slightest regret for what I had done, and
went about removing the bodies, as coolly as though they had been
so much old lumber. I took a rope and bent it on to the feet of the
elder Watts, hauled him on deck, and threw him over the quarter.
I then hauled the captain out in the same manner, and threw him
over; and then going to mid-ships, I lifted the body of the younger
Watts from the deck and plunged him into the sea by the starboard
side. I then threw the axe overboard, and soon as I had done this,
I changed the course of the sloop, and ran in close to the Hook. My
intention was to run the sloop up the North River, and then fire her,
but I came near running her on the Dog Beacon, abreast of Coney
Island and Staten Island lighthouse, after which I fouled with a
schooner, and carried away the bowsprit, so I put the money and
such other articles of value as I could pick up, into the yawl, and
then sculled ashore three miles, landing just below the fort on
Staten Island.

My movements after landing are well known; and when I
look back upon the fatality which seemed to dog my steps, it seems
as though the fiend, who so long had stood by me in every emerg-
ency, had deserted me at last, and had left me to my own weak-
ness. But I never thought of this until after my arrest. I had no
shadow of a presentiment that I should be checked so suddenly and
brought to justice, and on my return to New York, made arrange-
ments to go away with my family as coolly as if nothing had oc-
curred which should counsel me to use caution. But on that fatal
night when I awoke from a deep sleep to find the officers of the law
standing by my bed, for the first time fear overcame me, and I
grew faint and weak as a baby. Great drops of sweat started out
on my forehead and all over my body, and then I realized that at
last the master whom I had served so long had really deserted me
and abandoned me to my fate. But to all outward appearance I
choked these feelings down, and none who saw me dreamed of
what was passing within.

652 XIV. AMERICAN STATE TRIALS.

My task is done. I have related all the awful details of my life
with as much minuteness as I can, and now nothing is left me but
to prepare to die.

I ask no sympathy and expect none. I shall go to the gallows
cursed by all who know the causes which will bring me there, and
my only hope is that God will, in his infinite mercy, grant me that
spirit of true repentance which may lead to pardon and forgiveness
in the world to come.

THE EXECUTION.

July 13.

The scaffold which was sent from The Tombs to Bedloe's
Island was erected upon a green sloping terrace on the
north east side, giving upon the East River and Brooklyn.

Last night about midnight after an hour spent with Father
Duranquet Hicks fell asleep and was awakened at four by
one of the keepers.

At nine Marshal Rynders, accompanied by Sheriff Kelly
and other city officials, entered the cell. Hicks was reclin-
ing on his bed at the time, and quietly arose as the officers
entered the apartment. The Marshal then read the death
warrant to the prisoner, and at its conclusion told the con-
demned to prepare himself for the approaching execution.
Hicks immediately proceeded to array himself in a suit of
blue cottonade, got up for the occasion. His coat was rather
fancy, being ornamented with two rows of gilt navy buttons,
and a couple of anchors in needlework. A white shirt, a pair
of blue pants, a pair of light pumps, and the old Kossuth hat
he wore when he was arrested, completed the attire. Hicks
was exceedingly cool while engaged in arraying himself in
this fancy suit, and unconcerned about his approaching doom.
Questioned as to how he felt regarding the future world, he
replied, as if fearing to express any hope, "that is a matter I
would rather leave to him," referring to Father Duranquet,
who sat at his side. "I am resigned," he said. "The Mar-
shal has treated me very kindly : I will not say anything on
the island."

At 9:30 the culprit marched out of prison attended by
Father Duranquet, Marshal Rynders, Deputy Marshal
Thompson and Sheriff Kelly, and took his seat in the first

ALBERT W. HICKS. 653

carriage. The second carriage was filled with deputy sher-
iffs, and the third and fourth ones by the police and repre-
sentatives of the press.

The journey from the Tombs to the pier at the foot of
Canal St. occupied but a few minutes. The steamboat Red
Jacket had been chartered by the United States authorities
for the occasion. On it was already assembled a crowd of
more than 1500. On the lower deck was a refreshment
saloon and bar room; the day was warm and beer proved an
excellent and cooling beverage. With considerable pushing
and squeezing, the officers managed to convey their prisoner
to the saloon in the after part of the boat, where he was free
for a time from the gaze of the rabble. Hicks seated himself
on a settee near the cabin window, and burying his face in
his hands, apparently became engaged in deep meditation.
Having expressed a desire to be left alone with the priest
for a few moments, the officers and representatives of the
press retired from the apartment, and proceeded to the saloon
above. During all this time Hicks maintained his usual self-
possession. He told Marshal Rynders that he wanted every-
thing to be done as quickly as possible ; that he did not intend
to make any remarks on the scaffold. Subsequently he came
from the cabin and looked from the windows on the river,
evincing no show of feeling.

Steamboats, barges, oyster sloops, yachts and row-boats,
swarmed everywhere in view of the gallows. They had come
from all parts. From Connecticut, where the murdered cap-
tain and the brothers Watts belonged; from Long Island,
where they were well known. Large steamers, such as carry
hundreds of people away on pleasure excursions, were there,
so laden with a living freight of curious people, that it seemed
almost a wonder that they did not sink. There were barges
there with awnings spread, under which those who were
thirsty imbibed lager-beer. There were row-boats, with fe-
males of some sort, in them, shielding their complexion from
the sun with their parasols, while from beneath the fringes
and the tassels they viewed the dying agonies of the choking
murderer. But most conspicuous of all, and most regarded,

654 XIV. AMERICAN STATE TRIALS.

was the sloop E. A. Johnson, on which the murders were com-
mitted. Newly painted, she stood well into shore, her stern
not three hundred feet from the gallows, with a huge burgee
flying from her top-mast head, on which her name was
painted in large red letters. Her deck was crowded, her
masts and spars were alive with human beings.

The small boats on the water crowded with men and boys
covered several acres; the steamboats with their spectators
crowding to the island side seemed to sink to the water's
edge, the masts of all the vessels were black with sailors.

As the boat neared the pier, Marshal Rynders impressed
upon the crowd the necessity of preserving order and obeying
the instructions of his officers. The police, he stated, were
to go ashore first and take up their position at the scaffold,
and then the crowd were to follow four abreast. Finally, all
being in readiness, the procession started from the boat in the
following order: The culprit, supported on either side by
Father Duranquet and Deputy Sheriff Isaacs, Marshal Ryn-
ders, Deputy Marshal Thompson and Sheriff Kelly, Deputy
Marshals De Angelis, O'Keefe, Theodore Rynders, Thomp-
son, Donnell, Wilson, Dugan, Clackner. The physician's staff
consisting of Doctors Woodward, Thompson Weltje, Bell,
Phelps, Barry, Kennedy and Church. The representatives
of the press, numbering about fifty. Deputy sheriffs, city
officials, and spectators. Police.

As the procession passed to the pier, Major John B. Hall,
who had charge of the military arrangements, advanced with
a platoon of marines, and forming a line on each side of the
pier, allowed the procession to pass up to the shore. Here the
cortege was flanked on each side by troops which had been
sent from Fort Hamilton and Governor's Island for the
purpose; and as the end of the procession passed over the
side of the boat the military closed in behind and formed a
hollow square all the way up to the foot of the scaffold.

The procession reached the foot of the scaffold at ten
minutes past eleven o'clock. The culprit immediately knelt
on the grass, and for a moment or two was engaged in prayer.
He then rose slowly, and, facing the fleet of vessels which

ALBERT W. HICKS. 655

were anchored within a few feet of the shore, gazed intently
on the vast throng. While thus engaged in surveying the
exciting scene, his' eye caught the burgee of the identical
oyster-sloop E. A. Johnson. He gazed at the flag for a
moment, as if in recognition, and then, lowering his eyes,
looked long and earnestly upon the vessel and its crew. The
sight did not seem to shake him in the least, however, for he
remained firm and indifferent to the very last. At length
the fatal moment arrived, the executioner is observed to
place the rope around the culprit's neck, the black cap is
drawn over the unfortunate wretch's face, the Marshal takes
his position beside the criminal, sword in hand, the fatal sig-
nal, the waving of a handkerchief, is given, the axe descends,
and the next moment the body of the pirate is seen dangling
between earth and heaven.

For the first three minutes the culprit struggled severely,
but after that he appeared to suffer little or no pain, and
died comparatively an easy death. At eighteen minutes past
eleven his limbs began to relax, and the absence of any muscu-
lar contraction denoted that the executioner's work was well-
nigh over.

A moment afteward there was a short convulsive twitch of
the shoulders, all was still, and the body becomes perfectly
motionless, except when moved to and fro by the wind.

Eleven minutes after the rope had been cut, the body was
lowered and the doctors pronounced life to be extinct. It
was deemed advisable to let the body remain suspended for
some time longer; so the corpse was raised again to its
original position, and allowed to remain there until a quarter
to twelve.

Hicks made no speech on the gallows. His only words
were "Hang me quick: make haste."

The body was lowered and placed in a coffin and landed at
the Custom House dock. His widow through some mistake
waited for it at another place accompanied by a priest, so
it was interred in Calvary Cemetery, without her knowledge.

Before the body was taken down, most of the excursion
boats had started home.

656 XIV. AMERICAN STATE TRIALS.

The collection of small boats also began soon to break up,
and immediately after the body was removed, the sails were
unfurled, the rowers took their oars and the fleet quietly
dispersed. The Red Jacket, with the policemen and the
same crowd of passengers it brought up, was one of the last
to leave.

The Red Jacket made a short excursion up the river as
far as Spring St., and returning, down stream, landed her
passengers at Pier No. 1.

THE TRIAL OF BENJAMIN SHAW, JOHN
ALLEY, Jr., JONATHAN BUFFUM AND
PRESERVED SPRAGUE, FOR DIS-
TURBANCE OF PUBLIC WORSHIP
AND RIOT. IPSWICH, MASSA-
CHUSETTS, 1822.

THE NARRATIVE.

Three members of the congregation of the Society of
Friends or Quakers as they are commonly called, at the town
of Lynn in Massachusetts had been regularly suspended or
"disowned" from the church by the governing authorities.
But they not only persisted in attending the services but in
causing great disturbance and disorder by their conduct.

The Quaker meeting houses are separated into two di-
visions, one for the male, the other for the female members;
these are long benches on the floor. Then there is a gallery
about six feet above called the "raised seats" which by im-
memorial usage is reserved for the ministers, elders and such
venerable members of the Society as are invited to sit there
by the officers of the church.

At the service one morning, Shaw, Buffum and Sprague
and likewise Alley who was still a member but who sym-
pathized with the others, insisted on sitting on the raised
seats and had to be forcibly ejected by the overseers which
caused a great disturbance and much excitement. They
repeated this the next Sunday and made even more trouble.
Alley appeared with a sword and Buffum when ordered to
leave called the officials very hard names and it was not until
they had been pulled with force from the "high seats" which
they again occupied without authority, that they were ejected
from the church.

Indicted for disturbing public worship and riot, three ox

(657)

658 XIV. AMERICAN STATE TRIALS.

them pleaded that they had a right there as they had never
been legally suspended. But the court ruled that this was
immaterial, whether they were still members or not made no
difference as no one had a right to be a rioter in a church
building or to disturb a congregation engaged in religious
service. One of the prisoners, Alley, when called on to
plead, showed that he was so devoid of sense that the Com-
monwealth's lawyer dismissed him from the indictment on
the ground that he was insane; and another, Shaw, the jury
found not guilty for the same reason. But Jonathan Buffum
and Preserved Sprague were convicted by the jury and
though sentenced by the judge to pay a fine only, they were
told by him that if their offenses were repeated the law would
fall on them much more heavily.

THE TEIAL.1

In the Court of Common Pleas of Essex County, Ipswich,
Massachusetts, March, 1822.
Hon. Samuel Howe,2 Judge.

March 16.

The grand jury had previously returned an indictment
against Benjamin Shaw, Cordwainer, John Alley, Jr., Trader,
and Jonathan Buffum and Preserved Sprague, Painters, all of
Lynn in the County of Essex, for a riot and the disturbance
of public worship. In the first count they are charged with

i Bibliography. *Trial of Benjamin Shaw, John Alley, Junior,
Jonathan Buffum, and Preserved Sprague, for riots and disturbance
of public worship, in the Society of Quakers, at Lynn, Massachu-
setts, before the Court of Common Pleas, held at Ipswich, Massachu-
setts, March 16th, 1822. [Salem: Published by Cushing & Appleton,
1822.]

2 Howe, Samuel (1785-1828). Born, Belchertown, Mass.; prepared
for college New Salem and Deerfield academies; grad. Williams
Coll., 1804. Studied law with Jabez Upham, Brookfield, Mass., and
in law school Litchfield, Conn., under the joint guidance of Chief
Justice Reeves and Judge Gould. Admitted to bar 1807. Began
practice in Stockbridge, Mass., but removed to Worthington, Mass.,
1818, and, later to Northampton 1820 where he was partner of Elijah
Hunt Mills. Judge Common Pleas Court 1820-1828. In 1823, with
his partners, Mills and John Hooker Ashmun he opened a law

BENJAMIN SHAW AND OTHERS. 659

a riot in willfully disturbing and interrupting the Society of
Friends in their meeting house by intruding into and seizing
the minister's gallery, on February 17, 1822. The next three
counts charge them with willfully disturbing the Society of
Friends when met for public worship the same day and with
rude and indecent behavior; the fifth count charges them
with a conspiracy to disturb the society and the sixth count
charges them with a similar riot on February 14, 1822.

Mr. James C. Merrill3 and John Pickering4 for the Com-
monwealth ; David Cummins5 and Leverett Saltonstal6 for the
prisoners.

The Clerk. What have you to say to this indictment: are
you guilty or not guilty?

school at Northampton, Mass. Fellow of the Am. Acad. Arts and
Science. Died in Boston. See Davis, (W. T.), Bench and Bar of
Mass., 1895. Parker, (I.), Address of Chief Justice Parker to the
Bar of Suffolk at a meeting [Jan. 22] for the memory of Hon. Sam-
uel Howe. Boston Recorder Jan. 25, 1828. Am. Acad. Arts and
Science. Memoirs (list of members), Williams Col!., General Cat.
1910. Clark, (S.), Antiquities, historicals and graduates at North-
ampton, 1882.

s Merrill, James Cushing (1784-1853). Born, Haverhill, Mass.
Ed. Phillips Exeter Acad.; grad. Harv. 1807. Studied law with
John Varnum, Haverhill. Admitted to bar at Salem, 1812; Suffolk
Co. bar, 1815. Occupied a prominent position as a lawyer in Boston.
Justice of Boston Police Court 1834-1852. Member of Senate and
House of Representatives (Mass.) at various times. Member of
Mass. Hist. Soc. Was a Greek scholar of high attainments. Died in
Boston. See Davis, (W. T.), Bench and bar of Mass., 1895. Harv.
Quinq. Cat., 1915. Puritan Recorder, Oct. 6, 1853. Chase, (Geo. W.),
Hist, of Haverhill, Mass., 1640-1860—1861. Vital records of Hav-
erhill, Mass. Mass. Hist. Soc. Proceedings, 1835-1855, p. 561-563.

4 See 6 Am. St. Tr. 599.

s Cummins, David (1785-1855). Born, Topsfield, Mass. Grad.
Dartmouth Coll. 1806; studied law with Samuel Putnam, Salem.
Admitted to Bar 1809. Began practice in Salem; afterwards re-
moved to Springfield and finally to Dorchester. Many distinguished
men studied law in his office, among them Rufus Choate. Judge of
Court of Common Pleas 1828-1844. Died in Dorchester. See Davis,
(W. T.), Bench and Bar of Mass. 1895. Dartmouth Coll. Gen-
eral Cat. (1769-1910)— 1911. Hurd, (D. H), Hist. Essex Co. 1888.
Copeland, (A. M.), Hist, of Hampden Co. 1902. Topsfield, Mass.
Vital records 1903. Topsfield Hist. Soc. Historical collections, Vol.
V, 1899. The name is spelled Cummings in the last two references.

c See 6 Am. St. Tr. 599.

660 XIV. AMERICAN STATE TRIALS.

Shaw. I am not guilty of anything but going into the high seats.

Alley. I am guilty and not guilty.

Mr. Cummins requested Alley to plead not guilty.

Alley. I shall say what I have a mind to. I can answer no other-
wise than that I am guilty and not guilty, that is all I can say about
it — it takes two to make one.

Buffum. I acknowledge no guilt — I am not guilty.

The Court. Alley you can say as Buffum did, you acknowledge
no guilt.

Alley. I am guilty; you must make as much of it as you can.

The Court ordered the plea of not guilty to be recorded for Alley.

Mr. Pickering said that from the appearance of Alley and
the indications of insanity which were so obvious he con-
sidered it his duty to enter a nolle prosequi to the indictment
against him which was accordingly done.

The Clerk then informed Alley that he was discharged and
he left the bar.

The Jury were then called and empannelled, as follows:
Jabez Farley, Foreman, Ipswich; Amos Brickett, West New-
bury; Nathan Choate, Essex; John Davis, Beverly; Richard
Dodge, Beverly; Nathaniel Foster, Newburyport; Israel
Foster, Boxford; Samuel B. Graves, Salem; Cutting Moody,
Haverhill ; Oliver Appleton, Ipswich ; Josiah Brown, Ipswich ;
Thomas Perkins, Newburyport.

mr. Merrill's opening.

Mr. Merrill: Gentlemen of the Jury: The prosecu-
tion against the respondents at the bar has been com-
menced for an offense of rare occurrence, and to the com-
mission of which there can be little inducement or temptation.
This offense is the riotous and wilful disturbance of a re-
ligious society when assembled for public worship. Every
individual claims the right of worshiping God without mo-
lestation according to the dictates of his own conscience ; this
is a natural right recognized in the declaration of rights, and
confirmed by the statutes of the Commonwealth. The second
article of the Declaration of Rights, prefixed to our Constitu-
tion, is in these words : — ' ' It is the right, as well as the duty,
of all men in society, publicly and at stated seasons, to wor-

BENJAMIN SHAW AND OTHERS. 661

ship the Supreme Being, the great Creator and Preserver of
the universe. And no subject shall be hurt, molested, or re-
strained, in his person, liberty, or estate, for worshiping God
in the manner and season most agreeable to the dictates of
his own conscience; or for his religious profession or senti-
ments; provided he doth not disturb the public peace, or ob-
struct others in their religious worship. ' ' The Legislature has
declared in the 7th and 8th sections of the Act providing for
the due observation of the Lord's day, that if any person,
either on the Lord's day, or at any other time, shall wilfully
interrupt or disturb any assembly of people met for the pub-
lic worship of God, within the place of their assembling, or
out of it ; and further, if any person shall on the Lord 's day,
within the walls of any house of public worship, behave
rudely or indecently, the offender shall be subject to a fine.
An act of the Legislature was not necessary to constitute this
a penal offense, for it is undoubtedly a misdemeanor at com-
mon law. It has been expressly held by our highest tribunal
that disorderly behavior even in town meetings is an offense
at common law.

The respondents are charged in the indictments, that have
just been read to you, with wilfully disturbing a society of
Friends or Quakers. This quiet and peaceful sect has never
obtruded on the public notice its peculiar tenets and organiz-
ation, either for the purpose of gaining proselytes or for
ostentation. As frequent allusions to their peculiarities will
be made by the witnesses in the course of the present investi-
gation, a brief outline of their form of government and modes
of discipline becomes necessary for the clear understanding
of the evidence.

All the Quakers that reside in the New England States
constitute one voluntary association, called the society of
Friends ; all their real estate and meeting houses are held in
trust for the common use and benefit of the society ; the par-
ticular society that usually worships in the Friends' meeting
house in Salem have no other title to it than the society at
Lynn, or Seabrook. The portion of the general society that
dwells in the vicinity of a meeting house and usually wor-

662 XIV. AMERICAN STATE TRIALS.

ships in it, is denominated a particular society, or prepara-
tive meeting: — two or more particular societies within a con-
venient distance from each other meet once a month and
constitute a monthly meeting: — two or more monthly meet-
ings meet quarterly and form a quarterly meeting: — and all
the quarterly meetings assemble annually in the sixth month,
in Rhode Island, for the care and management of the spirit-
ual and temporal affairs of the general society. The yearly
meeting has jurisdiction over all the acts of the quarterly
meetings — the quarterly over the monthly — and the monthly
over the preparative.

Each monthly meeting chooses annually two or more of
each sex to be overseers, and one or more of each sex to be
elders, in each particular meeting. The duties of these elders
are similar to those of the elders of congregational churches,
and the duties of the overseers are analogous to the congre-
gational parish committees.

Few sects adopt so many precautions as the Friends to pre-
vent the intrusion of immoral and unqualified persons into
their ministry ; no person is a regular minister of the society
until approved as such successively by the monthly, quarterly
and yearly meetings. Every member may indeed speak in
the meetings, until admonished by the elders or others that
his preaching is unprofitable on account either of the style,
elocution, or doctrines. To preach or exhort after advice to
desist, is a breach of the order of the society.

The Friends, like all other religious societies, under every
system of religion, whether human or divine, claim and ex-
ercise the natural right of enforcing discipline for self-govern-
ment and self-preservation; this society has laws, privileges
and usages, positive and written, or implied and traditional,
which it guards from abuse and violation by the sanctions of
admonition and expulsion. Offenders, who are too obdurate
and refractory to be reclaimed by admonition and persuasion,
are excluded from the privileges of the society by excommuni-
cation or disownment. That the Friends have exercised the
right of disowning from the time of George Fox, the founder

BENJAMIN SHAW AND OTHERS. 663

of the sect, is proved by this extract from Clarkson's Por-
traiture of Quakerism:

"The Quakers conceive they have a right to excommuni-
cate or disown; because persons, entering into any society,
have a right to make their own reasonable rules of member-
ship, and so early as the year 1663, this practice had been
adopted by George Fox, and those who were in religious
union with him. Those who were born in the society are
bound of course to abide by these rules, while they continue
to be the rules of the general will, or to leave it. Those who
come into it by convincement are bound to follow them, or not
to sue for admission into membership. This right of dis-
owning, which arises from the reasonableness of the thing,
the Quakers consider to have been pointed out and established
by the author of the christian religion who determined that
if a disorderly person, after having received repeated admoni-
tions, should still continue disorderly, he should be considered
as an alien by the church. ' '

A member disowned by a monthly meeting has the right of
appeal to the quarterly meeting; if the decision is there af-
firmed, he may further appeal to the yearly meeting, and the
disownment may be reversed on appeal either for error in
fact or in the mode of proceeding; but until reversal, the
person disowned is bound to submit to the subsisting judg-
ment,

The meeting houses of the Friends are separated into two
divisions, one for the males, the other for the females ; all the
members, except the ministers and elders, sit in perfect
equality on the long benches on the floor of the house : in each
house there is an elevated seat or gallery in which the min-
isters and elders are accustomed to sit, facing the meeting:
this gallery is sometimes called the raised seats, is 5 or 6 feet
above the floor, and is elevated for the purpose of enabling
the elders to watch over and preserve the order of the meet-
ing, and the ministers to be heard when speaking. By im-
memorial usage, in all the meetings, these seats have been ap-
propriated to the accomodation of the ministers, elders, and
such other venerable and respected members as have been in-

664 XIV- AMERICAN STATE TRIALS.

vited by the officers of the society. It is not pretended that
any positive written rule exists to this effect; but it is gen-
erally and clearly known in this society what description of
persons have a right, and are accustomed to sit in the minis-
ters' gallery, as it is among Congregationalists who are en-
titled to sit in the pulpit or deacons' seats.

The respondents are charged in the first count in the in-
dictment with a riot, in wilfully disturbing and interrupting
this society by forcibly intruding themselves into and seizing
the ministers' gallery. The late Chief Justice Sewall, in
course of a trial in this county, took occasion to remark that
people in general had very indistinct and erroneous notions
of the nature of this offense, and that it was time they should
know what a riot was. A riot may be committed without
clamor, tumult, or commotion, or bloodshed, or actual vio-
lence; it may be committed in perfect silence — in silence
portentious as the calm that precedes a storm. A riot is a
disturbance of the peace, by three or more persons, assembled
with intent mutually to assist each other against any who
shall oppose them in the execution of a lawful or unlawful
enterprise, and afterward executing the same under circum-
stances tending to violence. When three or more co-operate
and assist each other in executing an unlawful purpose, in
committing a breach of a law, as in the present case, the vio-
lence, tumult and terror of the people, so often mentioned in
the books, are supplied by construction and intendment of
law, in odium of committing crimes by force of numbers ; the
circumstance of three or more co-operating in a breach of the
peace is sufficient to deter a peaceable individual from inter-
posing to restrain the offenders from the commission of the
offense, for there is just ground to apprehend forcible re-
sistance from those who are already engaged in violating the
laws. Sir James Mansfield, in a case which arose from the
0. P. controversy at Theatre Royal., Covent Garden, (2 Camp.
369. Clifford v. Brandon) held that "if any body of
men were to go to the theatre with the settled intention of
hissing an actor, or even of damning a piece, there can be
no doubt that such a deliberate and perconcerted scheme

BENJAMIN SHAW AND OTHERS. 665

would amount to a conspiracy, and that the persons con-
cerned in it might be brought to punishment. If people
endeavor to effect an object [even a lawful object] by tumult
and disorder, they are guilty of a riot. It is not necessary,
to constitute this crime, that personal violence should have
been committed, or that a house should have been pulled in
pieces. The law is, that if any person encourages or pro-
motes, or takes part in riots, whether by words, signs or
gestures, or by wearing the badge or ensign of the rioters, he
is himself to be considered a rioter, and he is liable to be
arrested for a breach of the peace. In this case, all are prin-
cipals." The respondents must be convicted of the offense
charged in the first count, if you are satisfied from the evi-
dence that three or more of them being assembled, mutually
assisted and encouraged each other in the commission of this
wilful disturbance, under circumstances tending to violence.

In the three next counts the respondents are charged with
the offenses of wilful disturbance of the society of Friends,
when met for public worship, and with rude and indecent be-
havior. They must be convicted on these, if the government
satisfies you that they wilfully committed any act that frus-
trated the purpose for which the society assembled; for the
meeting houses of all sects are sanctuaries in which parents,
children, the aged and infirm, have a right to assemble for
meditation and devotion, without even the fear of turbulence
or annoyance.

The fifth count charges the respondents with a conspiracy
to disturb this society. This crime is perpetrated whenever
two or more confederate to do an act prejudicial either to the
public or individuals, or to do a lawful act by unlawful
means, whether the confederates afterward proceed to exe-
cute the act, or not : even the inciting of another to commit a
breach of the law is a misdemeanor; "God forbid" said
Lord Kenyon, "that this should not be considered an offense
in a country professing to have laws, morals and religion."

The sixth count charges them with a similar riot on the 14th
Feb. to which the principles of law I have before stated will
apply.

666 XIV. AMERICAN STATE TRIALS.

It will be proved to you that all the respondents have been
accustomed to worship as members of the Friends' meeting
at Lynn ; for a few months past, these with a few other mal-
content members of the society have disturbed the meeting
by irregularly seizing the ministers' gallery, and under pre-
tense of preaching, insulted their brethren by uttering pro-
fane, coarse and opprobrious language. Three of them have
been disowned, and denied the privileges of the society; the
specific charges against them, for which they were disowned,
cannot by law be investigated on this trial, as the society has
exclusive jurisdiction of the violations of its orders and rules.
I mention the fact only as part of the evidence to show the
defendants acted together in these disturbances, having a
common cause of dissatisfaction. "Whether they were, or
were not members of the society, the acts with which they
stand charged, were equally unlawful and unjustifiable.
Though the defendants had been thus disowned, and had
forfeited the right of worshiping with that society, they
persisted in their irregular and disorderly conduct and at
length committed such outrages and extravagances that
the Friends' society was compelled either to appeal to the
civil authorities for the protection that is guaranteed to all,
or to abandon and desert the place in which they and their
fathers have been accustomed to worship.

WITNESSES FOR THE COMMONWEALTH.

Isaac Bassett. Was one of the meeting for public worship and

elders and overseers of the so- lowered when they proceed to

ciety of Quakers in Lynn. On their civil concerns. The min-

account of the disturbances ister's gallery consists of two

which had lately taken place on seats, one above-another; the

the morning of the 14th Feb- highest is raised five steps from

ruary the committee advised us the floor of the house; endeav-

to take a stand against the dis- ored to persuade Shaw to come

orderly conduct. At 11 the meet- down but could not succeed;

ing for religious worship com- told the meeting that the over-

menced. Benjamin Shaw was seers considered it improper for

sitting in the minister's gallery. Shaw to take that seat; again

There is a movable partition invited him to come down but

about the middle of the house he declined. I said he could not

which is raised during the be admitted to sit there agree-

BENJAMIN SHAW AND OTHERS.

667

able to the usage of the society
and that his conduct was pecu-
liarly improper as he had been
disownd the month previous.
Called on Jacob Chase and Dan-
iel Silsbee to remove him; he
braced himself against the rail-
ing and split the seat. They
placed him on a seat on the
floor; he refused to sit still; one
person sat on each side of him
to keep him quiet. Chase and
Silsbee removed him as far as
the broad aisle; they were in-
terrupted by Caleb B. Alley, son
of John Alley, advancing in a
fighting attitude. It took sever-
al to secure Alley and prevent

his obstructing the others in
taking Shaw out. There was
great confusion. Abijah Chase
had his hat knocked off. They
at length succeeded in removing
Shaw. John Alley, Jr., came in
and went to the aisle towards
the high seats; the committee
endeavored to prevent him but
he screamed very loud, crying
out, "Let me go by." Soon after
John Buffum passed into the
high seats and spoke to the
meeting in a very indecent man-
ner. At the meeting for busi-
ness Jonathan Buffum and Pre-
served Sprague were disowned.

Mr. Merrill read from the rules of discipline:
"It is the ancient and constant sense of Friends, that any
person denied by a monthly meeting, is adjudged as dis-
owned by Friends, and to stand and remain in that state, till
by his repentance, or by the reversal of such denial by a su-
perior meeting, he is reconciled to Friends or reinstated in
membership among them, with which this meeting hath unity,
and therefore, confirms the same. 1727."

Bassett. On the morning of
the 15th met John Alley with
his sword. I advised him to
take it off. He said, "You have
imposed upon us. It is now vic-
tory or death — I shall carry this
sword to meeting and if you
meddle with or impose upon us
I shall run you through as quick
as wink." I said, "John will
thee do such a thing as that?"
He said, "Yes, I will." Febru-
ary 16th the overseers concluded
to warn them against further
disturbance. February 17th I
endeavored to convince Buffum
of the impropriety of his con-
duct in taking the gallery seat.
He said, "I shall do as I think

best; we will be as strong as
you are." What I heard him say
in the meeting was: "You that
profess to be Quakers, Chris-
tians, have shown forth by your
conduct the fruit of your hell-
born principles this day." And
again, "Not because you are
Quakers but because you are
sons of Belial." And again,
"You thirst for our blood, you
want to feed upon us; this I call
spiritual cannibalism."

At the next meeting Buffum
entered the door soon after me
and then John Alley, Jr., with
a sword. When he got to the
first seat of the gallery I clasped
him around the waist so as to

668

XIV. AMERICAN STATE TRIALS.

confine his arms. I heard sev-
eral voices saying, "let him
alone," and told the people to
take notice. John's wife and
son said the same but said noth-
ing of his being crazy. Others
took away his sword and I let
him go. He then went up into
the minister's gallery. Saw
Johnathan Buffum, Benjamin
Shaw and Jacob Purinton up
there. Daniel B. Alley ran up
there. He and Shaw were both
desired, when they came into
the meeting, to take their seats
on the floor of the house. Al-
ley absconded very soon but the
others continued there during
the meeting. The meeting was
very large. Many boys and
other persons belonging to other
societies. John Buffum was the
first of the disorderly persons
who came in. I requested him
to take his seat on the floor. He
said he would sit where he
pleased and passed into the min-
ister's gallery; Daniel B. Alley,
also, though cautioned not to go.
Shaw passed up into the second
seat of the gallery. They were
all cautioned except John Alley,
Jr., who made a great noise by
screaming. Johnathan Conner,
Samuel Neal and Micajah C.
Pratt were requested to remove
Shaw; they carried him out. I
requested three others to re-
move Buffum. While they were
so doing John Alley, Jr., cried
out, "Let him alone, don't touch
him upon the peril of your

lives." He moved up towards
Buffum and appeared to assist
him in keeping his seat. When
they were removed into the aisle,
there was great confusion. Many
got into the aisle, and nearly
filled it up. One said, that was
too bad, and stepped out to pre-
vent their being removed. I re-
quested Daniel Newhall to move
out of the way. He said I
won't. Joshua Wilder, a stran-
ger, was speaking and making a
noise. I requested him to be si-
lent. He said I won't. A num-
ber of others crowded forward.
I had much difficulty in saving
myself from being plunged out
of the door. I saw Buffum and
the others carried out and re-
moved to a neighboring house,
where I went to see that they
were well taken care of; I then
returned to the meeting, and
found it pretty quiet. All the
defendants have been in the
habit of worshiping at the
Friends' meeting house. Sprague
had never been in the ministers'
gallery.

Cross-examined. The over-
seers are appointed to treat with
disorderly Friends. If they re-
port unfavorably the persons
complained of are disowned.
They then have a right to ap-
peal. Buffum and Sprague were
disowned at the meeting on the
fifth day, the 14th. Shaw had
been disowned at the meeting
previous. John Alley, Jr., has
never been disowned.

The Court. If the evidence already offered was true the conduct
of the defendants amounted to a riot, whether they were regularly
disowned or not. Evidence of the regularity of the proceedings of
the society in this respect is irrelevant.

Mr. Cummins. It is important to ascertain whether they were
regularly disowned. If the counsel for the government would ad-
mit that the defendants were still regular members of the society

BENJAMIN SHAW AND OTHERS. 669

of Friends and that it was lawful for them to take the high seats
they would agree that they had no right to take them in a violent
manner. We expected to show, that it has been the custom of the
society never to take a vote, and that there never was an instance
of a person's being disowned against the will of any members; in
other words, they never act over the heads of other members. The
committee of the quarterly meeting were not regularly appointed,
because there was no request for their appointment from the
monthly meeting; and the defendants never were regularly
disowned according to the usages of the society, but on the contrary
were still entitled to the privileges of members, because the clerk of
the meeting declared that he should pay no regard to the opinions
of those who did not agree with the committee and the body of the
society, and that according to the mode of proceeding the defend-
ants might have been disowned by a small minority only.

Mr. Merrill. We had not considered it important to inquire into
the regularity of the society's proceedings. The fact of the defend-
ants being disowned came out incidentally in the course of the
inquiry. If the proceedings were not regular, the defendants had
a right to appeal; but until the sentence is reversed they have no
rights as members of that society.

If they considered themselves aggrieved, they ought to have
adopted the regular course to obtain redress; but if, instead of so do-
ing, they determined to redress themselves by violence, they were
guilty of a riot. A riot may exist without an actual tumult; it may
be committed without noise. Would any person hesitate to call it a
riot, if a number of persons should in silence take possession of the
Judge's bench, and persist in holding it? It is the combination of
the prisoners with others, in attempting to assert their pretended
rights by force, which constitutes the offense charged against them.

The Court ruled that they could not go behind the proceedings
of the monthly meeting, it was immaterial, whether the defendants
were regularly disowned or not. Even if they considered them-
selves aggrieved at the proceedings of the society in disowning
them, and forbidding them to occupy the ministers' gallery, yet
if the evidence offered by the government against them is believed,
they were guilty of a riot. A settled minister of a congregational
society would be guilty of that offense if he should go with two
or more of his friends to take possession of his pulpit by force
against the will of the society. If three or more undertake to ac-
complish a lawful act in an unlawful manner, they are guilty of a
riot or conspiracy. The law will not permit persons to redress
their wrongs by violence.

Mr. Basset. The high seats ders generally invite those
are called the ministers' gallery; whom they think fit. No others
only one minister and three or go there except when the meet-
four elders occupy those seats; ing is crowded and then they
others sometimes occupy them go merely to make room; no
when invited; ministers and el- minister was excluded from the

670

XIV. AMERICAN STATE TRIALS.

seats by defendant. John Al-
ley, Jr., has contributed largely
to the support of the society;
he does not regularly attend
meeting; he has been sometimes
absent for six months; he would
remain quiet at meeting if suf-

fered to do as he pleased; he is
not disowned but is under the
notice of a committee. Defend-
ants made disturbance in taking
the seats. They did not appear
disposed to offer violence if they
were not interrupted.

Mr. Saltonstall. Have not persons other than ministers, elders,
or overseers sat in the high seats every Sabbath since the 17th of
February without any disturbance of public worship?

Mr. Merrill. It is true several had since that time been guilty of
the same offense as the defendants. Several had gone to meeting
with an expectation of being carried to prison for their disorderly
conduct and had made preparations for that purpose; their going
there was with a view of furnishing evidence for this trial.

The Court. The proposed inquiry is not admissible.

Mr. Basset. I am an elder but
do not sit in the high seat. It
is the privilege allowed to any
member of society who has
something to say to rise in his
seat and speak but not to go into
the minister's seat. When their
speaking is not satisfactory to
Friends it is their duty to be si-
lent and if they are not silent it
is disorderly.

Mr. Saltonstall. Are persons
not understood by Friends to
speak from the immediate influ-
ence of the spirit without any
preparation? Were Buff urn's
expressions like the sermons
often delivered in the Friend's
meeting houses? According to
their principles no preparation
is to be made, but when anyone
has a strong impression on his
mind it was his duty to speak?

The Coxjrt. This inquiry is
immaterial unless the persons
who thus spoke usually went
into the high seat. (To Basset.)
Was it considered regular for
anyone who wished to speak to
go into the high seats?

Basset. No; enough elders,
ministers, aged and honorable

persons attended the monthly
meethings to fill those seats.

Dr. Rowland Green. Belong
to the society of Friends; am a
physician; have been minister
in society eighteen years. By
the usages of society the high
seats are appropriated for the
ministers, elders, overseers and
the venerable and worthy. It
depends upon the ministers,
overseers and elders to deter-
mine who constitute the vener-
able and worthy. The usage is
the same throughout the coun-
try. The interior of all the
meeting houses are constructed
in the same way. First saw
Shaw at a yearly meeting at
Newport, Rhode Island; was
struck with the singularity of
his conduct in going to the high
seat; he was removed. Next
saw him at Lynn last summer.
He obtruded himself into our
committee meeting. Told him
his company was not wanted
and led him out of meeting.
He then came in at another door
and was led out again. At last
all the doors were fastened.
Next day saw him about the

BENJAMIN SHAW AND OTHERS.

671

meeting house yard, he looked
pale and distressed; took his
pulse which was languid; felt a
compassion for the young man.
He said that he did not sleep
well, that his appetite was poor;
conversed with him about his
obtruding himself into our meet-
ing. Believed his case might be
a species of insanity. Next
time saw him at quarterly meet-
ing at Seabrook. He was then
no more deranged than several
others who appeared to be com-
bined to disturb the meeting.
He seemed to be in unison with
others in a conspiracy. Shaw
told me he was not disowned
but that there were a few in the
monthly meeting who were un-
der the influence of the devil
and he spoke often in a reviling
and abusive manner. Saw noth-
ing like insanity except the
above disorderly conduct. Saw
him afterwards at a private
house. He had no appearance
there of insanity. He walked
the room and threw out harsh
expressions.

Obadiah Brown. As to the
high seats, none are allowed to
sit there except ministers, eld-
ers, overseers and such others
as are considered as having the
concern of society at heart. Was

at the meeeting at Lynn on 14th
of February. It was a noisy,
disturbed meeting. Confirm what
Basset said respecting it.

Cross-examined. The oversee-
ers do not always sit in the
high seats but their business is
to sit there if so disposed. Those
seats are never taken by young
persons except in very crowded
meetings. The seats on the floor
of the house are common to the
whole society but not the min-
ister's gallery.

Samuel Breed. "Was present
on 14th and 17th of February.
Was requested by the overseers
to assist two others in taking
Jonathan Buffum out of meeting.
Preserved Sprague took hold of
my coat which was kersey, and
pulled back so hard that I was
obliged to let go and was shoved
out at the door.

Daniel Silsbee. On the 17th
February my brother and I were
requested to take John Alley,
Jr., out of the high seats. Bas-
set and others were endeavoring
to clear the way. As many as
ten or twelve were concerned in
endeavoring to prevent us.

Mr. Cummins. Did you not
attempt to carry Shaw out on
10th February?

Mr. Cummins expected to prove that Shaw was removed
from the meeting on Sunday the 10th, and carried to the
work house, without any authority. He and his friends therefore
thought they had a call, a spiritual impulse, to go to the high seats,
and bear testimony against this oppression. This mode of bearing
testimony is according to the ancient usage of the people called
Quakers. They acted conscientiously in going to those seats, and
testifying against their being set apart for any particular portion
of the society.

Mr. Merrill. It was not competent for the defendants to make
this inquiry. It was impious arrogance and blasphemy in them to
set up any inspiration to justify them in violating the laws. If they
can prove themselves evil spirits, mere air, in that case they may

672 XIV- AMERICAN STATE TRIALS.

go unpunished; but as long as they are palpable, something that
we can see and feel, and confine within bars and bolts, they are
amenable before the civil tribunals to the laws as human beings,
and must be punished in the flesh for those sins of the spirit which
lead them to commit such outrages upon the community.

Mr. Saltonstall. The defendants believed they had a right to oc-
cupy those seats. They did not know them by the name of the min-
isters' gallery. Their object in going there was to bear testimony
by that act against what they considered an usurpation. The
Quakers have been always remarkable for their singularities; they
are a peculiar people; they are in fact a community by them-
selves. The conduct of the prisoners in taking possession of those
seats was not more singular than the conduct of George Fox, who
was in the habit of going into the houses of other religious societies,
or steeple houses as he called them, and inveighing against them
for their idolatry. The persons now complained of have been in
the habit of reading the books which contain accounts of those pecu-
liarities. They felt it a duty to go to meeting, not by combination
or violence, but quietly, and take those seats, and thus show that
in their opinion they were not more sacred than other parts of the
house; and that Shaw had been harshly treated, in being forcibly
taken from the house the Sunday previous.

The Judge. No person felt more respect for the society of Quakers
than himself; but they must be judged by the same laws as other
citizens. Objection to the testimony offered was, that instead of
tending to exculpate the defendants it went to convict them of an-
other riot. It may be true they had no intention of committing any
crime; but if they went to meeting with a determination to support
Shaw in taking possession of those seats, this act of theirs was crim-
inal; the inquiry proposed by the defendants' counsel was improper.

Squiers Shove. Am one of the had got six or seven stout men

committee appointed by the and if they were not sufficient a

meeting of Salem and Lynn to captain of militia in Lynn had

wait upon Shaw and treat with offered to turn out his whole

him on account of his miscon- company; that they had got a

duct. He did not incline to number of able generals and a

treat with us as a committee but strong body to overset the old

would converse with us as neigh- order. I confirm the statement

bors. John Alley and Shaw said of Basset as to the occurrence,

they would fight as long as they Buffum and John Alley came in

had a drop of blood in their bod- about the time of taking Shaw

ies. Buffum was present. He out. Philip Chase of Lynn and

said nothing but smiled and ap- another person tried to prevent

peared to assent to their re- his being removed,

marks. This was on 12th of Feb- Cross-examined. T h ou g h t

ruary. On 15th Buffum and Shaw there would be bloodshed. My

came to my house; Buffum said wife has staid away from meet-

the old -order would be glad ing for two months. Shaw's

to settle for $5,000; said they character is that of an ignorant,

BENJAMIN SHAW AND OTHERS.

673

wilfull creature. Do not know
much about Buffum. Sprague
has the character of being peace-
able and orderly.

Ichabod Nichols. I and Ezra
Collins were a committee to wait
upon Jonathan Buffum. We told
him we wished to know if he
would treat with us. He de-
clined. Squiers Shove was there.

Buffum said we might return
to the meeting and tell them
they had sent us upon a Tom
Fool's errand. John Alley, Jr.,
was present. He said we were
leagued with the devil. Talked
very loud, and in a threatening
manner. Shaw and others came
in. Alley said they were going
to fight. Shaw said they would
fight as long as they had a drop
of blood. Buffum said that if
they were of the same disposi-
tion as we were, there would be
blood shed. The elders and min-
isters only are entitled to sit in
the ministers' gallery. Never
knew of other persons sitting
there till within a few months.

Micajah Collins Pratt. "Was
present at the meetings of the
14th and 17th of February and
confirm the statement of Isaac
Basset. Jonathan Buffum was
standing at the porch. John Al-
ley came with his sword; he
stept up the aisle. Jonathan
Buffum had his umbrella raised
when Alley was seized by Basset.
Preserved Sprague said, "Let
that man go up." Buffum said,
"Let him go up, let him go up,
I say." Buffum stept over sev-
eral seats to the high seat. We
had to cut the belt before we
could take the sword away. Al-
ley's wife and son said, "Let him
go up." I said, we will not be
trifled with by letting a man go
Up there with a sword. She said,

we ought to be trifled with. Dan-
iel B. Alley forbad our taking
the sword from John. Daniel
then seated himself with Shaw.
In the afternoon was one of those
appointed by Basset to remove
B. Shaw; John Alley forbad my
touching him. Buffum said,
"Let him alone, he is a peace-
able man." There was a great
noise, and the women were much
frightened.

David Hawks. Was present
on 17th February and stood
alongside of young Abel Hough-
ton who said, "Crowd up and
stop the door so that they shall
not get them out." Told him
not to say those words again or
he would be prosecuted as a riot-
er. Houghton cried out again to
shut the door, took hold of half
of it, and with others shut it.
Several cried out, "Mob! Mob!"
They were taking out Alley,
Shaw and Buffum at this time.
The riot act was read in the
street by the Deputy Sheriff; 150
persons were present.

James Purinton. On 17th Feb-
ruary warned Jonathan Buffum
and B. Shaw not to go into the
gallery seats. On the evening
of 16th the overseers concluded
not to suffer them to go there.
The minister's gallery is appro-
priated to the ministers, elders,
overseers and others whose life
and conversation answer to their
profession.

Philip Chase. Have always,
belonged to the society of
Friends. The high seats are ex-
clusively appropriated to min-
isters, overseers and elders. Per-
sons sitting there face the con-
gregation. Was at the meeting
on 14th February; confirm the
statement of Isaac Basset. When
they were removing Shaw, Caleb

674 XIV- AMERICAN STATE TRIALS.

Alley rushed forward using very North Carolina. Others besides

profane language. He had his ministers, overseers and elders

arms raised and said "By God" occasionally sit there but not

or "my God you shall not carry usually. On common occasions

him out." the highest seat is unoccupied.

Micajah Collins. Have been a It is considered disorderly for

minister of society nearly tweri- young persons to occupy them

ty years. The usage respecting except when the house is crowd-

the high seats is the same as ed and they cannot get seats

stated by the other witnesses in elsewhere.
all the societies from Maine to

Mr. Cummins. Gentlemen of the Jury: I am apprehen-
sive that in consequence of the great variety of testimony,
a mistake will arise as to the parties charged in this prose-
cution. Many persons besides the defendants have been al-
luded to as confederates ; but the defendants are not answer-
able for the acts of other persons. Your attention should be
confined simply to the parties indicted; and the only ques-
tion for your consideration is, whether they are guilty of the
offenses specifically alleged against them.

The defendants are all charged with a riot. In order to
constitute this offense, three or more must co-operate. They
must assemble with intent mutually to support each other
in the execution of an unlawful enterprise, or of a lawful
one in an unlawful manner.

Before you can convict the defendants, you must be satis-
fied that they occasioned the disturbance. We contend that
they did nothing which neccessarily tended to a breach of
the peace. They are not answerable for the disturbance
which took place, unless you are satisfied that they occasioned
it wilfully.

The Court. If the defendants intended to do the act
which amounted in law to a disturbance, they are answerable,
whether they considered it an offense or not.

Mr. Cummins. This was the first instance which had been
known of a prosecution for a disturbance in the Friends'
meeting house. In weighing the conduct of the defendants,
the Jury should consider what are the usages of this society.
An act may amount to a disturbance in one society, which

BENJAMIN SHAW AND OTHERS. 675

would not be so considered in others. Suppose a person
should go into a congregational meeting with his hat on, and
rise in his seat to address the meeting : These acts would be
disturbances; but it would be quite otherwise in the Friends'
meeting. We say that there was nothing unusual or extraor-
dinary in the conduct of the defendants on this occasion.
They did nothing, except taking the high seats. Now if
taking possession of those seats was not extraordinary, you.
must say that they did nothing to excite a disturbance. The;
meeting houses in Friends' societies are all held in common;
there is no assignment of seats; on the contrary, people are
seated promiscuously. All have equal rights in their houses,
and no seats are more sacred than others. No confusion oc-
curred till an attempt was made to remove them. But they
are not accountable for the subsequent confusion, provided
they were justified in taking those seats. They are not an-
swerable for the act of John Alley in carrying the sword.
He was an insane person, and the government have acknowl-
edged it by discharging him. We shall show also that Shaw
was at this time deranged. This indeed appears already
from one of the government's witnesses. With respect to the
other defendants, we shall show that they support good char-
acters. They have not been considered as disturbers of the
peace, but are quiet and good citizens. Unless then they were
guilty of an offense in taking a seat in the meeting house
which they did not consider appropriated to any particular
persons, and if this was not an unusual transaction at that
meeting, you must find them not guilty.

THE WITNESSES FOR THE PRISONERS.

Dr. Hazeltine. Been acquaint- particular subject; and he may
ed with Benjamin Shaw five be deranged in the same manner,
years. Have always considered Very many subjects produce de-
him very modest and diffident, rangement, such as love, fear,
but at times inclined to derange- revenge, religion. The latter has
ment. For the last three months a powerful effect. Shaw's char-
be has been partially deranged. A acter is that of an inoffensive
man may be perfectly correct man. He appeared for a consid-
with respect to every operation erable time under a great excite-
of his mind, except upon some ment about religion. On one oc-

676

XIV. AMERICAN STATE TRIALS.

casion, last September, his con-
duct was very singular when I
met him. He held out his hand,
and said how do you do, Friend
Hazeltine; I have nothing to
say to thee, but I thought I
would stop to tell thee so — I
have nothing more to say now;
so good bye. Whenever I met
him before, he appeared ration-
al, but he then appeared other-
wise.

Cross-examined. Had not
much intercourse with Shaw for
the last three months. Had not
been called to visit him as a
physician. Shaw's friends did
not consider him deranged. Had
frequently visited the Friends'
meeting. Did not consider it the
practice for persons to sit pro-
miscuously in the high seats.
Sprague and Buffum are upright
and peaceable men. There is
nothing exceptionable in their
conduct but their religious ex-
citement.

Abel Houghton. Was present
at the Friends' meeting on 14th
February. Basset said to me,
"We conceive that B. Shaw is
improperly in the high seat."
He was sitting there alone,
peaceably. Chase and Silsbee
went to take him down. In get-
ting him down they let him fall,
I suppose accidentally. Silsbee
put his hand round his throat.
Shaw said, You may as well cut
my head off as choke me to
death. Basset said, "Take him
out." I never heard the name
of ministers' gallery till within
a few weeks; they are usually
called the high seats: they are
commonly occupied by ministers
and elders; but others sit there
occasionally and in two instances
I have known persons sit there,
who did not belong to the so-

ciety. Sometimes the ministers
take their seats on the floor of
the house, but they usually take
the high seats.

Shaw was present at a funeral
last fall. He said, with a laugh,
"If a beast dies, you would not
make such a fuss; you had bet-
ter take the old man off." After
the procession was formed, he
said, "you look very nice; if you
had music, you would make a
fine appearance." Shaw is con-
sidered a harmless person.
Sprague and Buffum's characters
are good; I never heard them
charged with any improper con-
duct.

Edward Southwick. Heard
Shaw address Chase in the plu-
ral language which he had not
been used to do. Till within a
year had never heard him use
any profane or improper lang-
uage.

Thomas Arnold. Benjamin
Shaw appeared to be a very se-
rious young man and one of few
words. He had some degree of
depression owing to religious ex-
citement; was very talkative
and there was a peculiar turn
in his eye which attracted my
attention. There was a wander-
ing levity in his manner which
satisfied me that he was de-
ranged.

Samuel Philbrick. Am ac-
quainted with Benjamin Shaw;
was very serious when he first
became a member of our society;
have known him to sit a whole
evening without speaking; dis-
covered a wildness in his man-
ner. Told me he had an idea of
taking his own life, he said he
thought it was his duty. He
often made communications ih
meeting which I consider im-
proper and some of his observa-

BENJAMIN SHAW AND OTHERS. 677

tions none could justify; I have character the same as related

considered his eccentricities as by the others. The characters

proceeding from derangement, of Sprague and Buffum are

He has repeatedly come into my good.

house and laid down upon the Josiah Clough. Shaw observed

floor half an hour at a time, to me two or three months ago,

Sprague and Buffum's characters that he was determined to pull

are good. the old order down, for they

William B. Breed. Am ac- were a stiff, arbitrary set. Saw

quainted with Shaw. Think his nothing in him like insanity.

Mr. Merrill said the records of the Friends ' society were in
Court, by which it would appear that the defendants had
been regularly disowned.

The Court said that they could not examine into the regu-
larity of those proceedings, inasmuch as it was not material
whether the defendants had been regularly disowned or not.

THE JUDGE'S CHARGE.

Judge Howe. Gentlemen of the Jury: The defendants
stand charged with several offenses, which are specified in the
indictment. In relation to the main facts in the cause, there
is no controversy: the testimony of the first witness intro-
duced by the government stands uncontradicted.

The principal charge against the defendants is for a riot, in
seizing and occupying the ministers' gallery in the Friends'
meeting house at Lynn. This charge will attract your chief
attention, because it is an offense of a more serious nature
than the others. A riot is defined, "A tumultuous disturb-
ance of the peace by three persons or more, assembling to-
gether of their own authority, with an intent mutually to
assist one another, against any one who shall oppose them in
the execution of some enterprise of a private nature, and
afterwards actually executing the same in a violent and tur-
bulent manner, to the terror of the people, whether the act
intended were of itself lawful or unlawful." If this defini-
tion is to be relied upon, it is of no consequence whether the
defendants had or had not a right to take those seats. The
only question is, whether they went with a determination to
take possession of them by force.

678 XIV. AMERICAN STATE TRIALS.

That three or more were concerned, there is no doubt.
You have it in evidence that several others abetted the de-*
fendants, by which they all became equally culpable. The
defendants were warned by committees, who acted under the
sanction of the society, not to take those seats ; but they went
there, notwithstanding. Buffum stood at the door, looking
out, as if waiting for Alley. He was there when Alley came
with his sword, and then followed him into the seats. The
other defendant, Shaw, did the same. If Alley was sane,
there is no question, but that in so doing he committed a
breach of the peace. It was the same as to those who as-
sisted him, and in consequence of their connection they were
guilty of a riot.

Basset says, that he requested them to come down, because
they disturbed the meeting. Several took hold of Shaw to
remove him. He resisted, and injured the seat. Alley clung
to him, to prevent his removal. This is evidence of a concert.
It is immaterial whether they had a right to those seats, or
not. If they went there with an intention to take the seats,
and to resist any attempts to remove them, it must be con-
sidered a riot. Was their conduct tumultuous? There can
be no doubt it was a breach of the peace, even if it had been
on any other day. If in our society three or more persons
should go to take possession by force of the pulpit, deacon
seats or singing seats, it would be considered a riot. The law
upon this subject is not generally understood. Persons may
commit a riot in attempting to assert their rights. The law
will not permit individuals to use force in such cases, but it
requires them to surrender the power of redressing their
wrongs into the hands of the government.

The only question between the parties seems to be, whether
the defendants had a right to take those seats. But this is not
material as to the first charge against them, for a riot. It is
material however as to the three next charges, which are
simply for disorderly conduct, and behaving rudely and in-
decently. There is no question but that these are offenses at
common law. It has been decided by our courts, that dis-
turbing a town meeting is such an offense ; and the law is un-

BENJAMIN SHAW AND OTHERS. 679

doubtedly the same for disturbing a religious society. You
will therefore inquire whether the people were assembled for
public worship, and if the defendants were guilty of dis-
orderly conduct in taking those seats. It is said by their
counsel that the mere taking the seats was no disturbance of
public worship ; but the question is, whether it had not a
tendency to disturb the peace. It is said, that there is no
written regulation respecting the seats. But the same may be
said of our pulpits. It is universally understood that the
pulpit is appropriated for the minister; but there is no writ-
ten rule upon that point, nor is it the case that none but
ministers ever sit there: it is not uncommon for deaf per-
sons to sit there ; and in some places, where there is no settled
minister, sermons are read from thence by other persons.
The general usage however in our societies is well under-
stood. It is common for example to have certain places in
the singing seats reserved for ladies, but if rude young men
should intrude themselves into those seats they might be
punished for disorderly conduct, though there is no law or
written regulation to forbid their taking them.

You will then inquire, if it was agreeable to the regular
usage of the society for the defendants to take the seats in
question. Did they go to an improper place. If their con-
duct was irregular, you must find them guilty upon the
second, third and fourth counts. But if it was not irregular,
you must find them not guilty upon those counts. Upon this
point the evidence is uncontradicted, that it is not usual
for persons as young as the defendants to take those seats.
One of their own witnesses testifies that he considered Shaw's
taking them (at Providence) as a mark of derangement.

The defendants are charged in the fifth count with a con-
spiracy. If they had predetermined to take those seats, you
must convict them upon this count ; as it is the previous con-
cert which constitutes the offense. Several persons have
testified as to what took place previous to the meeting. You
will recollect the testimony as to the threats of John Alley,
and connect it with the conduct of Buffum in standing in
the porch, waiting for him. If you have any doubt as to the

680 XIV- AMERICAN STATE TRIALS.

previous agreement of the defendants, you must acquit them ;
otherwise you will find them guilty.

The sixth count is for a riot on the 14th February. You
have it in evidence, that the defendants, Shaw and Buffum,
went to the seats on that day. The same remarks therefore
apply to this count as to the former. I have proceeded thus
far upon the supposition of the defendants' being of sound
mind.

With respect to Shaw, it is contended by his counsel, that
he was deranged. You will recollect the testimony upon this
point. It is barely necessary to remark, that the evidence of
his derangement ought to be gathered from other facts than
those with which he stands charged, unless his conduct upon
that occasion was so extraordinary that no person in his
right mind would be guilty of it. The burden of proof is
upon the defendant, to satisfy you of his insanity, as
every person is presumed to be sane till the contrary is
proved.

The other defendant, Sprague, is indicted for the like of-
fenses only on the 17th Feb. The evidence against him is
much less explicit, than against the others. It does not
charge him with going there with a predetermination to take
the high seats, but only with aiding and abetting the others
when there. One person testifies, that he cried out, Let this
man go up ; and he resisted one of those persons who was
carrying out Shaw. It is not necessary that there should
have been a previous concert, to convict Sprague upon the
charge of a riot. If, at the moment when he saw a breach of
the peace take place, he aided and abetted in it, he is guilty.
The degree of guilt may be very different; but that is only
to be considered by the Court in passing sentence. If he was
merely present, and assented to the conduct of others by an
overt act of encouragement, as in the case cited of a person
who merely suffered an emblem 0. P. to be put in his hat by
other rioters, he was guilty, as an accomplice, of the same
offense. As to the second count against Sprague, for dis-
orderly conduct, this depends upon the question, whether
the others had a right to take the seats. If they had no

BENJAMIN SHAW AND OTHERS. 681

right, he must be found guilty upon this count. His ex-
pressions tended to encourage the others. If he had been
silent, or if he had used discouraging expressions, perhaps
no tumult would have ensued.

As to the third count against Sprague, for a conspiracy, I
do not recollect any direct evidence of his being concerned
in the previous concert. Unless you recollect some, you will
acquit him of this charge.

You have heard evidence as to the character of the de-
fendants. In criminal prosecutions it is always the right of
the persons charged to introduce such evidence, and it is
competent afterwards for the government to rebut it by
contrary testimony. In doubtful cases, or in prosecutions for
infamous offenses it has great weight ; but in cases like the
present it is not so important. It requires the strongest evi-
dence to prove that a person of fair character has been guilty
of a theft, for instance; and in such case evidence of his
good character would be very important. But in the present
case the defendants did nothing which they conceived tended
to destroy their reputation; they considered that they were
only asserting their legal rights. With regard to their intent,
it is not necessary that they should have intended to break the
laws: the only question is, whether they intended to do the
acts charged against them ; and if they did, they are guilty
of the offenses for which they stand indicted.

THE VERDICT AND SENTENCE.

The Jury retired and in about two hours returned with a verdict
of Guilty on all the counts against Jonathan Buffum and Preserved
Sprague, and an acquittal of Benjamin Shaw, by reason of insanity.

Mr. Saltonstall stated, in mitigation, that Buffum was a mechanic
of little property, with a family, and Sprague entirely destitute of
property, with a large family of children, one of whom had been
born since the father was imprisoned.

Mr. Merrill said he was expressly instructed by the prosecutors
to declare that this prosecution had been commenced not from any
vindictive motives, but from necessity and for self-preservation;
that a few days before the session of this Court, several members
of the society had visited the defendants in prison and proposed
to them, if they would simply give assurances that they would

682 XIV. AMERICAN STATE TRIALS.

in future abstain from a repetition of these disturbances of the
meetings, no complaint should be made against them to the grand
jury; such assurances however could not be obtained. Even now
the society wished the Court would impose as light a punishment
as should be deeemed consistent with the duty of the Court and
the ends of justice.

The Court. The facts now suggested by the defendants' counsel,
as well as the testimony to their general good character, and the
probability that their offenses had arisen from a delusion or mis-
conception of their rights, would have due influence in measuring
the punishment — Buffum was sentenced to pay a fine of One Hun-
dred and Fifty Dollars and Sprague Seventy Five Dollars.

The Court admonished the prisoners, that if these offenses were
repeated by them or their associates, the arm of the law would
fall much more heavily on them.

THE TRIAL OF JOHN Y. BEALL FOR VIOLATION

OF THE RULES OF WAR AND ACTING AS

A SPY. NEW YORK CITY, 1865.

THE NARRATIVE.

During the civil war the United States had a prison camp
on Johnson's Island on Lake Erie and the war vessel Michigan
was kept in commission near by. On the evening of Septem-
ber 18, 1864, Bennett G. Burley1 who had been a captain in
the Confederate Navy went on board the Philo Parsons, a
steamship plying between Detroit and Sandusky, Ohio, touch-
ing at the Canadian ports, Amherstburgh, (Maiden) and (oc-
casionly) Sandwich, a few miles below Detroit, and told the
clerk that he intended to go down as a passenger next day
and had three friends at Sandwich who were to go with him,
and arranged that the boat should call there for them.

At Sandwich the next morning John Y. Beall2 boarded the

i He was born in Glasgow, Scotland, and was the head of the Lake
Erie Expedition. See President Davis's Proclamation, post p. 702.
On his return to Canada he was arrested at Guelph and ordered to
be extradited on a charge of robbing Ashley, the clerk of the Philo
Parsons of a twenty dollar Treasury note. He escaped, became cele-
brated as a war correspondent under the name of "Burleigh" and
died on June 17, 1914. The proceedings in his case in the Canadian
Courts at Toronto will be found in 1 Upper Canada Law Journal,
20-34.

2 John Yates Beall who was a native of Virginia and of a leading
family, was born January 1st, 1835. A student for three years at
the University of Virginia, he was a devout member of his church
and exemplary in his life. "When the war broke out he joined
the forces of his State and fought in her cause, being wounded in
the first year of the conflict. Later he went to Upper Canada and
lived at Dundas for some time. While there he conceived the bold
scheme he afterwards attempted to carry out. On his return to
Richmond his plan was approved; but the time was not thought
favorable, and Beall for a time operated as a privateer upon the
Chesapeake, etc. He was taken prisoner and confined at Fort Mc-
Henry, but was afterwards released. The Confederate Secretary of

(683)

684 XIV. AMERICAN STATE TRIALS.

boat with two others and further on at Maiden twenty-five
other men got on board. All the baggage they had was a
very old trunk tied with a rope. Then the boat proceeded on
its way to Sandusky; she called at Kelly's Island (Ohio) and
was about two miles away from there when the trunk was
opened disclosing revolvers and hatchets, and the men who
had boarded the boat at the Canadian ports armed them-
selves and took forcible possession of the steamer, making
prisoners of the passengers and crew. They opened the
baggage-room with an axe, threw overboard the freight, then
headed the boat to Middle Bass Island (Ohio) about ten
miles from shore. After a few minutes the steamboat Island
Queen came alongside and made fast. The armed party went
aboard her and made prisoners of all (amongst them some
twenty-five unarmed American soldiers going to Toledo to be
mustered out of service) ; brought them to the Philo Parsons
and then put all the prisoners from both boats ashore on the
island. Beall and Burley forced Ashley, the clerk, to give
them the money he had on board, about one hundred dollars.
The Island Queen was then scuttled and set afloat ; she drifted
for two or three miles, struck a reef and sank.

More than one of the conspirators had told the passengers
that they intended to capture the Michigan and then, liber-
ating the prisoners on Johnson's Island, destroy the com-
merce on the lakes. This was not attempted; the Philo Par-
sons was abandoned and the Southerners scattered.

Beall reached Canada again in safety but in December he
joined Colonel Martin, Lieutenant Headley and Private An-
derson, all formerly of Morgan's command on the railroad
track near Buffalo trying to lift a rail, but failing in their
object. He then went back to Canada but several nights
later was joined by another confederate soldier and the

the Navy then determined to try Beall's suggested scheme on Lake
Erie. In March, 1863, Beall was appointed as Acting Master in the
Navy of the Confederate States. He made his way to Canada,
where at that time there was an active Southern colony in Toronto,
headed by Colonel Jacob Thompson. There the scheme was hatched.
(Riddell, W. R., p. 16.)

JOHN Y. BEALL. 685

five made another abortive attempt to wreck an approaching
train, though they succeeded in lifting a rail and placing
it across the track. This was ostensibly for the purpose of
affecting the rescue of some Confederate Generals who it was
believed were being removed from Johnson's Island to Fort
Warren. The engine struck the rail but no harm was done.
Beall and Anderson were arrested the next night at the
Station at Niagara Falls where they were waiting for a train
to Canada. Beall was taken to New York City and there in
jail he made an attempt to effect his escape by bribery.

Beall was brought before a Court Martial of Military offi-
cers. Anderson turned State's evidence. The charges were
two: 1st, ''Violation of the laws of war," with six "specifi-
cations, ' ' and 2d, ' ' Acting as a spy, ' ' with three. They were
based on the Philo Parsons and Island Queen episode, and
the attempt to destroy the train between Buffalo and Dun-
kirk. He was convicted on both counts and on February
24th, 1865 was hanged on Governor's Island.

THE TRIAL.3

Before a Military Commission, New York City, January,
1865.
Brig. General Fitz Henry Warren,4 President?

3 Bibliography. *"Trial of John Y. Beall, as a Spy and Guerrillero,
by a Military Commission. New York: D. Appleton and Co., 1865."

*"A Court Martial Fifty Years Ago." (William Renwick Riddell)
50 American Law Review, 15.

*"Memoir of John Yates Beall; his Life, Trial, Correspondence,
Diaries and Private Manuscripts, found among his Papers; includ-
ing his own Account of the Raid on Lake Erie. Montreal: Printed
by John Lovell, St. Nicholas St., 1865." Though published anony-
mously the author was Judge Daniel B. Lucas, Beall's close personal
friend and fellow student.

Appleton's Cyclopaedia of American Bibliography and The
Americana. In these two publications his second name is Young, a
clear mistake, for Yates was his mother's name. His surname was
pronounced "Bell".

* "Warren Fitz Henry (1816-1878). Born Brimfield, Mass.; grad.
Wilbraham Acad. Removed to Burlington, la., 1847 where he en-
gaged in business. Asst. Postmaster General, 1849; Chairman Nat.

686 XIV. AMERICAN STATE TRIALS.

January 25.

The Commission which assembled today at Fort Lafayette,
New York Harbor, was appointed on January 17 by Major
General Dix.6 The trial was postponed until February 1st.

February 1.
The Trial began today.

Major John A. Bolles,1 Judge Advocate ; James T. Brady,8
for the Prisoner.

Rep. Convention, 1856; member editorial staff of New York Tribune,
1861, but retired to become Colonel of 1st Iowa Infantry; was suc-
cessively Brigadier-General, Brvt. and Major General; mustered out
Aug. 1865. State Senator, Des Moines Co., la., 1866; Minister to
Guatemala, 1867. Later engaged in literary work at Washington,
D. C, and New York City (where he was writer for the N. Y. Sun) ;
Editor, for a time, of the Burlington (la.) Hawkeye. Engaged in
railroad building in Iowa following which he returned to the East;
died Brimfield, Mass. See Stiles (E. H.) Recollections and Sketches
— 1916. Appleton Cycl. Amer. Biogr. — 1915.

s With him sat Gen'l W. H. Morris, Colonel M. S. Howe, Colonel
H. Day, Brev. Lieut. Col. R. F. O'Bierne, Major G. W. Wallace.

s Dix, John Adams (1798-1879). Born Boscowan, N. H. Served
in war of 1812; studied law and practiced at Cooperstown N. Y.
1828. Superintendent of Schools and Secretary of State 1833-1840.
Member Assembly, N. Y. 1842. United States Senator, 1845-1849.
Secretary of the Treasury 1861. Major General U. S. Volunteers
1861-1865. Minister to France 1866-1869. Governor of New York
1873-1875.

7 Bolles, John Augustus (1809-1878). Born, Eastford, Conn.;
Grad. Brown Univ., 1829. Admitted to bar (Boston), 1833. Secre-
tary of State (Mass.), 1843. Member Harbor and Back Bay Comm.
1852. From 1862-65 served as Judge-Advocate on staff of General
John A. Dix, his brother-in-law (successively Captain, Major, Brevet
Lieut-Colonel and Brigadier General.) In Navy Department, Wash-
ington, D. C, as JudgerAdvocate and Solicitor until death there.
See Appleton Cycl. Am. Biogr. — 1915. Wash. Direct. — 1865-1878.

s See 12 Am. St. Tr. 497. Mr. Clinton says: "Extraordinary
Cases" (N. Y. 1896).

Among the New York lawyers of Irish parents, but American
born, the most conspicuous were Charles O'Conor and James T.
Brady; both alike in being great lawyers, but wholly unlike in their
chief characteristics and personal appearance. Mr. O'Conor was
tall, well proportioned, with little remarkable in his general ap-
pearance, except that his countenance usually wore an extremely
thoughtful expression. Mr. Brady was short, rather small, well
proportioned, except his head, which was very large and out of

JOHN Y. BEALL. 687

He was arraigned on the following charges and specifi-
cations, which were read aloud in his presence and hear-
ing, and to which he pleaded not guilty.

Charge 1st. Violation of the laws of war.

Specification 1. In this that John Y. Beall, a citizen of
the insurgent State of Virginia, did on or about the 19th'

proportion to the rest of his figure. On account of the great size
of his head Mr. Brady could only wear a hat made especially for
him. Any one who, for the first time, saw O'Conor engaged in an
argument or trial would recognize him as a man of decided ability,
deep study, thoroughly prepared for the work he had in hand,
wholly absorbed in his case, but otherwise not presenting a very
imposing appearance. One who first saw Brady thus engaged
would be struck with his dignified and commanding appearance;
attention would be at once riveted upon his massive head. He pos-
sessed a striking figure, which would command marked attention
anywhere. His serene and captivating manner would indicate ex-
treme confidence in the merits and success of his case. Mr. O'Con-
or's manner would indicate anxiety as to the result, and a deter-
mination to do everything in human — or legal — power to achieve a
victory for his client. Their habits in respect to preparation for
trial presented an extraordinary contrast. Mr. O'Conor spared
no labor in the preparation; all the work was performed or super-
vised by him, even to the smallest detail. Nothing could exceed
the thoroughness of his preparation upon the law and the facts. It
seemed almost impossible that any other lawyer could prepare as
thoroughly as he did. Mr. Brady's habits were the reverse; he went
to the very opposite extreme. In the early part of his professional
career, it was said, he was quite studious. But afterwards, and
especially during the last twenty years of his life (he died in 1868,
when fifty-four years of age), as a rule he made no preparation for
trial. When consultations were appointed for those on his side of
the case, he failed to attend them, but on the morning of the com-
mencement of the trial he promptly appeared in Court. As soon
as the trial had started he gave close attention. He was quite likely
to learn, for the first time, something about the side he represented
when the case was opened to the jury by the Attorney or Junior
Counsel associated with him. After the trial had progressed a little
he would grasp, as if by intuition, the leading features and the
turning-points of the case; and any one who did not know to the
contrary would suppose that he had made as much preparation as
Mr. O'Conor before trial. Mr. O'Conor succeeded by reason of his
almost superhuman assiduity in preparing his case. Mr. Brady
succeeded in spite of his indolence and lack of preparation. Mr.
O'Conor was a good speaker; Mr. Brady was a born orator. In

688 XIV. AMERICAN STATE TRIALS.

day of September, 1864, at or near Kelly's Island, in the
State of Ohio, without lawful authority, and by force of
arms, seize and capture the Steamboat Philo Parsons.

Specification 2. In this that John Y. Beall, a citizen of
the insurgent State of Virginia, did on or about the 19th day
of September, 1864, at or near Middle Bass Island, in the
State of Ohio, without lawful authority, and by force of arms,
seize, capture and sink the Steamboat Island Queen.

Specification 3. In this that John Y. Beall, a citizen of
the insurgent State of Virginia, was found acting as a spy at
or near Kelly's Island, in the State of Ohio, on or about
the 19th day of September, 1864.

Specification 4. In this that John Y. Beall, a citizen of
the insurgent State of Virginia, was found acting as a spy on
or about the 19th day of September, 1864, at or near Middle
Bass Island, in the State of Ohio.

Specification 5. In this that John Y. Beall, a citizen of
the insurgent State of Virginia, was found acting as a spy
on or about the 16th day of December, 1864, at or near Sus-
pension Bridge in the State of New York.

Specification 6. In this that John Y. Beall, a citizen of
the insurgent State of Virginia, being without lawful au-
thority, and for unlawful purposes, in the State of New York,
did in said State of New York undertake to carry on irregu-
lar and unlawful warfare as a guerrilla ; and in the execution
of said undertaking, attempted to destroy the lives and
property of the peaceable and unoffending inhabitants of
said State, and of persons therein travelling, by throwing

addresses to juries and public assemblages the one was powerful;
the other was magnetic. In public addresses, when Mr. O'Conor
closed, the audience would, with considerable enthusiasm, applaud.
When Mr. Brady wound up his speech the entire audience would
yell, "Go on! go on!" and continue to yell so long as there was the
faintest possibility that their demands might be complied with. In
large political meetings, when Brady was to speak, the managers
would put him down as the last speaker in order to hold the audi-
ence; for the vast crowds assembled would wait to hear Brady if
they had to remain all night. He was the pet and idol of the Bar,
as well as of public assemblages.

JOHN Y. BEALL. 689

a train of cars and the passengers in said ears from the rail-
road track, on the railroad between Dunkirk and Buffalo, by
placing obstructions across said track; all this in said State
of New York, and on or about the 15th day of December,
1864, at or near Buffalo.

Charge 2d. Acting as a Spy.

Specification 1. In this that John Y. Beall, a citizen of
the insurgent State of Virginia, was found acting as a spy in
the State of Ohio, at or near Kelly's Island, on or about the
19th day of September, 1864.

Specification 2. In this that John Y. Beall, a citizen of
the insurgent State of Virginia, was found acting as a spy
in the State of Ohio, on or about the 19th day of September,
1864, at or near Middle Bass Island.

Specification 3. In this that John Y. Beall, a citizen of
the insurgent State of Virginia, was found acting as a spy in
the State of New York, at or near Suspension Bridge, on or
about the 16th day of September, 1864.

THE WITNESSES FOR THE PROSECUTION.

Walter 0. Ashley. Am clerk passengers. I agreed providing
and part owner of the steam- Burley would take the boat him-
boat Philo Parsons. On Sunday, self at Detroit and let me know
18th of September, about six p. for sure that his friends would
m. I was on the steamboat at be ready to come on board at
the boat's dock in Detroit, she Sandwich, that the boat would
being a boat sailing from De- call for them. He then went
troit to the City of Sandusky, away. Next morning the boat
touching regularly at the Cana- left Detroit at eight with
dian port of Amhurstburgh and freight and passengers. Burley
occasionally at Sandwich. Mr. came to me and reminded me
Bennett G. Burley came aboard of my promise to stop the boat
the boat, said he intended to go at Sandwich. Captain S. F. At-
down as a passenger in the wood was in command of her
morning to Sandusky, that but he stepped off at Middle
three friends were going with Bass Island where he resides. I
him, and he requested that the told Captain Atwood that the
boat would stop at Sandwich, a boat would have to stop at
small town on the Canada side Sandwich and he stopped and
of the river below Detroit and took these three friends of Bur-
take on those three friends as ley at Sandwich. The accused

690

XIV. AMERICAN STATE TRIALS.

was one and there were two
others. They were all dressed
in citizens' clothes, they had no
baggage; they were very gentle-
manly in their appearance, said
they were taking a little pleas-
ure trip — might stop perhaps at
Kelly's Island — did not know ex-
actly where they would go; paid
their fare to Sandusky. At Mai-
den, Amhurstburgh, Canada
West, about fifteen miles further
down the river, about twenty-
five men came on board, they all
paid their fare, also. All the
baggage brought on board by the
party was a very old trunk, a
rope tied around it. It was tak-
en in at the after gangway of
the boat by two of the roughest
looking subjects in the party;
most of the party were roughly
dressed in citizens' dress. It
was about half-past nine in the
morning when we left Amhurst-
burgh. Everything passed cff
quietly until about four in the
afternoon. The boat had just
left Kelly's Island, six miles
from the American shore on
Lake Erie. We were about two
miles from Kelly's Island to-
wards the American shore and
four miles off the Ohio main
shore. The mate was sailing
the boat; he was sailing mas-
ter; I was in charge of the af-
fairs of the boat. I was stand-
ing on the main deck in front
of the office and the ladies' cab-
in; the passengers at this time
— there were about eighty, near-
ly half of whom were ladies —
were in the upper cabin. Three
men came up to me, drew re-
volvers and levelled them, and
said if I offered any resistance
they would shoot me. They
were three of the party; the ac-
cused was not one of those

three, neither was Mr. Burley
at this time. Bennett G. Burley
came from the forward part of
the boat aft, followed by fifteen
or twenty. Burley had a revolv-
er in his hand and levelled it at
me and said, "Get into that cab-
in," meaning the ladies' cabin,
"or you are a dead man." He
commenced counting, "one, two,
three," at the same time. He
had not counted a great many,
before I was inside the door;
two men were stationed outside
of the door, for the purpose of
keeping me in the cabin, with
revolvers in their hands; the
party gathered around the old
trunk; the cords were cut, the
lid taken off, and they armed
themselves from that with re-
volvers and hatchets; most of
them had two large revolvers,
and a portion of them hatchets;
they then took forcible posses-
sion of the boat, and made pris-
oners of all on board. I could
look out through the door on
the main deck and see every
thing that was going on. Ben-
nett G. Burley had charge of
this deck at the time. Burley
with an axe which he found on
board smashed the baggage
room door open — then smashed
the saloon door; he then went
with the axe, smashed the trot-
ting sulky to pieces, which was
thrown overboard; he then with
the men under him commenced
to throw the freight overboard,
consisting of household gnods,
tobacco and iron; about an hour
after the capture of the boat,
Capt. Beall, came to me and
asked me if I was in charge of
the office, of the boat's papers. I
told him I was. He then said
he was in charge of the party,
and wanted the boat's papers,

JOHN Y. BEALL.

691

and I went into the office and
gave him the papers, and he
took them and carried them
away. I made a request that he
would not destroy the steam-
boat. He said something to the
effect that if I was a United
States soldier, or United States
officer, and had seized any of
their vessels, that I would prob-
ably destroy the vessel. He did
not say to me that he was a Con-
federate States officer — some of
the others did say so; said the
party were Confederate States
soldiers, and that the expedition
was in charge of Confederate
States officers. Directly after
the capture the boat was headed
down the lake; directly off from
her course for Sandusky; then
turned around and ran up the
lake to Middle Bass Island for
the purpose of wooding, and also
for the purpose of putting the
passengers ashore.

Middle Bass Island is in the
State of Ohio, about ten miles
from the shore. She had been
lying there about fifteen min-
utes when the steamboat Island
Queen came alongside; she is a
steamboat that runs from San-
dusky to these islands with
freight and passengers both,
making the round trip every
day. The party that were then
in charge of the Philo Parsons
went aboard the Island Queen,
seized her, made prisoners of all
on board, and brought them all
on board of the PJiilo Parsons
as prisoners; part of them were
put in the cabin of the Philo
Parsons, and part of them were
put into the hold. The passen-
gers of both boats were after-
wards all put ashore on Middle
Bass Island. Captain Beall
came to the door and said:

"Ladies you will have to go
ashore now, as we are agoing to
use this boat." I went back,
to pick up my books and papers;
Capt. Beall came back and Bur-
ley with him; they said they
were going to allow me to go
ashore; I asked permission to
take the boat's books; Capt.
Beall said I should not take
them, that I should not take
any thing belonging to the boat;
I then said I had some private
promissory notes in an envelope
and requested leave to take
them; Burley said: "Let me see
them." I produced them; he
looked at them, said he "could
not collect them," and gave
them to me. Capt. Beall then
said: "We want your money."
I opened the money drawer, in
which there was very little
money, perhaps eight or ten dol-
lars; they took that out. Bur-
ley then said: "You have more
money; let us have it." I put
my hand into my vest pocket
and took out a roll of bills of
about $100, and laid it on the
desk; I then requested again
that I might be allowed to take
the books, but they refused to
let me take them; I was then
put ashore.

The roll of bills was taken be-
tween them; Capt. Beall and
Burley took the roll of bills, and
also took the money out of the
drawer; they took it between
them; they both made a demand
for the money. I then went on
shore. After I had been on
shore about half an hour, the
boats were started in the direc-
tion of Sandusky; they were
alongside lashed together. About
•two or three miles out I noticed
the Island Queen drifting from
the Philo Parsons; it afterwards

692

XIV. AMERICAN STATE TRIALS.

proved that she was scuttled;
she drifted about four miles, and
drifted on to a reef and was
afterwards raised; she was
nearly full of water when she
was raised.

Cross-examined. Never saw
Burley or Beall before they
came on board the Philo Par-
sons. Burley was spokesman
for the whole party. I did not
pay any attention to Beall until
after the capture of the boat.
He did not tell me that he was
a Confederate States officer. The
two men that were guarding me
after the capture of the boat,
that stood outside of the door,
said that they were Confederate
States officers and soldiers and
that they intended to capture
the United States steamer Mich-
igan and release their friends on
Johnson's Island, and others
said the same thing. Had sup-
posed Burley was in charge of
the party until Captain Beall
came to me and requested me
to give him the papers; he then
said he was in charge of them.
Beall said: "If you were a Unit-
ed States officer and had seized
one of our boats, you would prob-
ably destroy it. " There were
no shots fired; they were pre-
sented at me and they said if I
offered any resistance they
would shoot me. Am sure I
saw Beall have a revolver at the
time he was in the office when
the money was delivered. Bur-
ley, at the time of the capture
of the boat, before they had
made the general seizure of the
boat and made prisoners of all
on board, drew his revolver and
told me to get into that cabin
or he would shoot me. I did not
see Beall for an hour or an hour
and a half before the capture of

the boat. He was in citizen's
dress like the other two persons
who came on board; Captain
Beall said in the first place: "We
want your money" and Burley
said: "You have more money,
and let us have it." They did
not take any papers except such
as belonged to the boat. I made
a demand for those notes as my
personal papers and they gave
them up.

When the Island Queen at-
tached herself to the Philo Par-
sons there were about twenty or
twenty-five unarmed United
States soldiers going to Toledo
to be mustered out of the ser-
vice; they were in uniform.
They were taken as prisoners
with the rest of the passengers
and were put into the hold with
the rest of the passengers.
They were put ashore before I
was; they were put ashore at
Middle Bass Island, the place
where I was put ashore.

The President. State whether
there was any military or naval
mark or badge on the accused
while he was on board the Philo
Parsons. There was not; they
were dressed as citizens, in citi-
zens' dress, and paid their fare as
passengers, and were treated as
passengers. Did Burley and
Beall divide the money in any
way, which you took and laid
in a roll of bills on the desk?
They were taking the money
when I left; I laid it on the
desk, and they were taking the
money; they both made the de-
mand, and were both taking
the money between them. I
saw them taking the money be-
tween them and dividing it.

Mr. Brady. The soldiers on
board the Island Queen were un-
armed? Do you know whether

JOHN Y. BEALL.

693

there were any arms on board
of this vessel? There were not;
not to my knowledge.

During any part of the time
you were on board after the cap-
ture of the Philo Parsons, was
any flag displayed by this party?
Not while I was on board.

Did they not display a flag
afterwards to your knowledge?
Not to my recollection.

William Weston. Have been
a fireman for the last five years.
Saw Captain Beall on board the
Philo Parsons on the 19th of
last September. I was a passen-
ger; he said they were not going
to hurt or harm any of us, and
that they would land us as soon
as they thought fit; he also
stated that he was an escaped
rebel prisoner from Johnson's
Island, and that they had taken
the boat for the purpose of cap-
turing the United States vessel
Michigan; they were going to
liberate the prisoners on John-
son's Island, and were going to
destroy the commerce on the
Lakes.

After the boat was seized did
not see them do anything with
the freight; they threw out one
of my boxes that I got after-
wards on the beach, that was
pitched out. They pitched one
of my boxes into the water.
Beall was dressed in citizen's
clothes. Could not say whether
he was the person or not, but I
heard somebody called Captain
Beall.

Cross-examined. I was
brought down to Fort Lafayette
to point out Captain Beall. I
did so when I saw him. Did
not point out another and a dif-
ferent man who proved to be a
man named Smedlay.

David E. Thomas. Am. a po-

lice officer; arrested the accused
in the depot of the New York
Central Railroad at Niagara
City on the 16th of December
last, about nine at night, with a
young man calling himself An-
derson. They had a small car-
pet bag — contents, a dirty shirt,
a shirt that had been worn, a
pair of socks, some five or six
tallow candles that had not been
burned, some matches done up
in a paper and a box partly full
of paper collars. He had a bot-
tle of laudanum in one of his
pockets.

Had on citizen's dress with an
overcoat and cap. He had one
of Colt's in a sheath attached
to his body by a belt under
both his coats. While searching
him I asked him his name and
he said Beall. A few minutes
afterwards I asked him again
with a view of learning his ini-
tials ; he then said his name was
W. W. Baker. I said he told me
his name was Beall and he de-
nied it. He had one ten dollar
Canada note and he had some
five or six dollars in American
money or scrip. He asked me
what I arrested him for. I said
he knew probably as well as I
did. He said he did not. Finally
told him I arrested him as an
escaped rebel prisoner. He
asked if from Point Lookout; I
told him it was, that he was an
escaped prisoner from Point
Lookout. Said he, "That I will
acknowledge; I am an escaped
prisoner from Point Lookout."
He said after he escaped from
Point Lookout he made his way
to Baltimore and he had friends
in Baltimore who had furnished
him with money to go to Can-
ada. Asked which of them
owned that bag and the young

694

XIV. AMERICAN STATE TRIALS.

man said the accused owned the
bag, which he denied. They
said those candles were a neces-
sary article to use when they
could not get other lights. In
regard to the laudanum, his an-
swer was, that he was subject
to the toothache. He said it was
fortunate that I arrested him
suddenly as I did; that he had
been in prison so much that he
had made up his mind, when-
ever he was attempted to be ar-
rested again; and on this partic-
ular occasion, had I not taken
him as quick as I did, that one
or the other of us would have
been a dead man — that he had
fully resolved never to be taken
alive.

Cross-examined. Mr. Saule,
another policeman, was with
me. He said that he belonged
to the Second Virginia Infantry,
was a sergeant in the ranks. I
asked him if he held any other
position, and he said, no.

Feorwary 2.

Edward Hays. Am doorman
at the Police Headquarters, Mul-
berry Street. Accused asked me
to carry a letter out for him
and have it mailed; said he
wanted it to go to Canada, from
there word could be sent to his
government that he was in
prison. I reported to Mr. Kelso
in charge of the Detective Office,
what he had told me; went back
to the prisoner and told him
that there were several detect-
ives in the office. He said to
me, "Hays, I tell you what you
can do for me, you can let me
go." I said I could not; he said,
"If you do I will give you $1000
in gold;" said he had not that
amount of money with him but
his word was good for the mon-
ey when he would get to Can-

ada; that a man there had that
amount of money and more be-
longing to him. I asked him if
he had any hand in the fires
here in New York; he said no,
that he knew parties and they
were then in Canada. Told
him I could not let him go for
the money, that it would be too
much risk for me to run. He
said he thought he would be
found guilty and that I should
run a little risk to save him.
He was arrested before and got
a letter through, and the Con-
federate government, hearing of
his imprisonment put in prison
a son of one of General Meade's
head officers with eleven more
officers, and kept them there un-
til he was released. I said,
"I suppose if your government
found out that you were in pris-
on here now that they would
try to get you out in some way."
He said he did not think they
would because he was arrested
under a different charge; he did
not think his government was
as strong now as it was then. I
then told him I would see if I
could let him go. Said he, "You
know you can." Told him I
would see what I could do and
reported to Mr. Kelso and In-
spector Carpenter what he had
told me. Went back and asked
him what time in the night he
would like to get away; he said
in the fore part, that he had two
friends in Thirtieth street, that
if he could get to their house
he could get arms there and
then it would take somebody to
arrest him, "For, I know what
would happen to me if I was to
be caught and brought back
again." Asked him if those
friends could not furnish him
the money before he would leave

JOHN Y. BE ALL.

695

New York. He said, yes, prob-
ably half of it, in greenbacks if
not in gold; if not that he
would leave me an order that
would positively get it in Can-
ada. Asked him if he had any
friends he thought would get
him clear on the way going. He
said he would go to Thirtieth
street and then to a friend
about five miles from Jersey
City who did business in New
York, there he knew he would
be safe. He would not tell me
their names; said he did not
know exactly the street or the
number. Asked him if he gave
the right name in the detective's
office; he said he did not, that
they did not know his name
and could not find it out. I said
"You must have done a good
deal of harm to our govern-
ment." He said, "Yes, I have
taken hundreds and hundreds
of prisoners. I have done Lin-
coln's government a good deal of
harm and they know it." He
said he knew something that
would be worth ?30,000 to any-
one in the detective's office, if
he would tell, and things that
would be worth millions of dol-
lars to the government if he
would only come out and discov-
er; said he knew he could not
live long as he had got a ball
through his side. Told him I
would see what I could do. I
then left him and when I came
back he was gone; he was taken
to Fort Lafayette the next day.
Cross-examined. Mr. Kelso
said to me when I would get
time to go into the cell to him,
to see if I could draw on with
him to get him to tell me what
his name was, and if so to see
if I could not get from him to
tell me what charges he was ar-

rested on. Kelso was then act-
ing as sergeant. I did not go
immediately to the cell where
the accused was; I waited some
time until I had leisure; I had a
good deal of work to do. When
I asked him what he was
charged with he said that was
his secret. I pretended to him
that if he wrote a letter I would
have it sent for him to Canada.
I first intended to give it to
Kelso who was in charge to let
him act on it as he saw fit.

George S. Anderson. Am 18;
have been in the Confederate
military service. First saw
Captain Beall, the accused, on
the railroad out from Buffalo,
several miles west towards Dun-
kirk, six days before my arrest
at Suspension Bridge. I got to
Buffalo on the Sunday preced-
ing my arrest, an hour or two
before daylight; went into a ho-
tel and went to bed; was in citi-
zen's dress and, had no arms.
In the morning met Lieutenant
Headley; he belonged to Mor-
gan's command when I knew
him; saw him but I did not
speak to him and he did not
speak to me. He got up and
went out on the street and I
went out after him. He signi-
fied to me to follow him out;
went out after him and he told
me to follow him upstairs in the
same hotel, which I did; also
saw Colonel Martin there who
had been an officer in the rebel
service. They said they were
glad to see me, they had a plan
in view then and they wanted
more men and they would like
to have me with them. They
said they intended to capture a
train; they told me to remain
there that day, that they were
going to Dunkirk the next day

696

XIV. AMERICAN STATE TRIALS,

to capture the train from Dun-
kirk the next night after that.
They said they were from Can-
ada. On Tuesday evening I
went to Dunkirk; at Dunkirk
they told me that they were not
going to try to take the train
that night; told me to be at the
depot in Buffalo the next day at
2 o'clock; was there at the de-
pot the next day at 2 o'clock
and I saw those two officers
there and they told me to fol-
low them out along the rail-
road towards Dunkirk, which I
did; followed them out I sup-
pose three or four miles from
the town when we overtook
Captain Beall on the railroad.
We went on the railroad five
or six miles from the city — we
four; we tried to get a rail off
the track with a large sledge-
hammer and a cold chisel; did
not succeed in the attempt and
went back to town. We then
went to Canada that night, to
Port Colburn; we remained
there two nights and one day.
We then came back to Buffalo;
there was five in the party then,
one additional man, I don't
know who he was; he told me he
was an escaped prisoner from
Rock Island. The Colonel told
me to go with Captain Beall
and stay with him and he would
meet us at a bridge with a
sleigh — which I did. Col. Martin
met us there and Lt. Headley
was with him. The fifth man
went with Captain Beall and
me and we parted. We missed
the bridge; went the other side
of the bridge and we took one
end of the road and came back
to the bridge and he took the
other end of the road; and the
sleigh had got by when we ar-
rived there. But the sleigh

found us at last. We went to a
point on the railroad I suppose
five miles from the city. We did
not do anything; the train
passed about the time that we
got there. We went back to
Buffalo and I and Capt. Beall
and this fifth man stayed to-
gether at the hotel until the
next day at 2 o'clock. Then we
met the Colonel and Lt. Head-
ley in a sleigh at the same
bridge the next day at two
o'clock; the same party of five
and the same sleigh. Then we
went back to the same point
on the railroad that we went to
on the day before. Three of the
party went up the track to get
the sledge-hammer I think, and
I and the Colonel were in the
sleigh. We hitched the horses
and got out and went up the rail-
road a piece and we saw the
train coming, and the Colonel
had taken up an iron rail and
taken one end and laid it across
the track. He got the rail by
the side of the track. It was
then just about dark. I saw the
train strike the rail and the
whistle blew just then, and it
stopped, I suppose, some two or
three hundred yards from there.
I don't know what damage was
done. Somebody came back
with a lantern — two or three
came back. We went back to the
sleigh and went to Buffalo. The
sledge-hammer was thrown
away, so was the cold chisel; it
had been carried in the carpet-
bag that was taken when we
were arrested. They determined
to leave and go to Canada; we
took the cars for Suspension
Bridge. On getting to Suspen-
sion Bridge on the train from
Buffalo I and Captain Beall
were arrested. I don't know

JOHN Y. BEALL.

697

what became of the other three,
I never saw them after I left
Buffalo. Captain Beall told the
officer that we were from Point
Lookout; he said that we had
escaped from Point Lookout
and were making our way to
Canada. I have most forgotten
what was said there at the
time. Colonel Martin or Lt.
Headley or the accused did not
state whether they were under
orders or were acting by any-
body's directions. The Colonel
told me that he expected to cap-
ture the express and the money
that was on it.

Cross-examined. "Was born
in Pittsylvania County, Va. Was
in Morgan's corps, a private in
the cavalry, with Col. Martin.
He was a colonel in Morgan's
corps. Was attached to my
company about three weeks.
Heard nothing said about there

being three or some other num-
ber of Confederate generals on
the express train of the Lake
Shore Road and who were being
removed from Johnson's Island
to Fort Warren, Mass. Colonel
Martin had command of this ex-
pedition and Headley and Capt.
Beall acted under his orders.
Had never seen Capt. Beall be-
fore the time I overtook him on
the railroad. Capt. Beall gave
no orders in regard to the at-
tempt to get the train off the
track. Col. Martin was the prin-
cipal, I think he gave the orders ;
it all went by his directions.
When the train struck the rail
which Col. Martin had laid
across the track, I and the Col-
onel were in the woods; the
others I think were up the road
a piece; I don't know whether
they were concealed or not.

The Judge Advocate read the following three letters which
the prisoner admitted ; also a pocket diary which he said was
kept by him and was in his handwriting.

Fort Lafayette, N. Y., Jan. 22d, 1865.
Mr. D. B. Lucas,
173 Main St., Richmond, Va.

Dear Dan: — I have taken up board and lodging at this famous
establishment. I was captured in Deer, last, and spent Xmas in the
Metropolitan Hd. Qrs. Police Station. I am now being tried for
irregular warfare, by a Military Commission, a species of court.

The acts are said to have been committed on Lake Erie and the
Canada frontier. You know that I am not a "guerrillero" or "spy."
I desire you to get the necessary evidence that I am in the Confed-
erate service, regularly, and forward it to me at once. I shall write
to Cols. Boteler and Holliday in regard to this matter. I must have
this evidence. As the Commission so far have acted fairly, I am
confident of an acquittal. Has Will been exchanged? I saw that
Steadman had been killed in Kentucky. Alas! how they fall!
Please let my family know if possible of my whereabouts. Where is
my Georgia friend? Have you heard any thing from her since I
left? May God bless her. I should like so much to hear from her,
from home, Will, and yourself. Be so kind, therefore, as to attend

698 XIV- AMERICAN STATE TRIALS.

at once to this business for me. Remember me to any and all of
my friends that you may see.

Send me some postage stamps for my correspondence.
Hoping soon to hear from you,

I remain your friend,

J. Y. Beall, C. 8. N.
If Mr. Lucas is not in Richmond, will Mr. Hunter attend to this

AT ONCE.

Fort Lafayette, N. Y., Jan. 22d, 1865.
Col. A. R. Botelee,

Richmond, Va.
Dear Sir: — I am on trial before a Military Commission for irreg-
ular warfare, as a "guerrillero" and "spy." The acts are said to
have been committed on Lake Erie and at Suspension Bridge, in
Sept. and Dec. last.

As I cannot in person procure any papers from Richd., I have
to rely on my friends, and therefore I request you to procure evi-
dence of my being regularly in service, and forward such evidence
at once to me. I have also written to Messrs. Hunter and Lucas.
Please call on them in regard to this, and also Mr. Henderson if
necessary.

Very truly, your friend,

J. Y. Beall, C. 8. N.

Fort Lafayette, N. Y., Jan. 22d, 1865.
Col. Jacob Thompson,

Toronto, C. W.

Sir: — I was captured in Deer., and am on trial before a Military
Commission for irregular warfare, as a "guerrillero" and "spy." The
acts are said to have been committed on Lake Erie and at Suspen-
sion Bridge, N. Y., in September and December last.

I desire to procure from my Government and its authorities evi-
dence of my being regularly in service, and of having been acting
under and by authority. Please procure and forward me, as soon
as possible, certificates or other evidence confirming this fact.

The Commission so far have evidenced a disposition to treat me
fairly and equitably. With the evidence you can send, together
with that I have a right to expect from Richd. and elsewhere, I am
confident of an acquittal.

Please attend at once to this, acknowledging at any rate the re-
ceipt of this letter.

Very respectfully,

J. Y. Beall.

Thursday, Dec. 29, 1864.. I purpose to keep in this little book a
daily account of my imprisonment as far as I can.

First. As to my incarceration:

I was arrested Friday, December 16th, in the N. Y. Central R. R.
station house, at the Suspension Bridge (junction with the Gr.

JOHN Y. BEALL. 699

Western R. R. of Canada). I was brought to this city Sunday ever
ning (18th), and lodged here. I have been taken out some half
dozen times to be shown men, whose houses have been attempted by
fire, or property otherwise attempted. The modus operandi is this:
The prisoner, unkept, roughly clad, dirty, and bearing marks of
confinement, is placed among well-dressed detectives, and the recog-
nizer is shown in. As a matter of course he can tell who is the
stranger. My home is a cell about 8 feet by 5, on the ground floor.
The floor is stone; the walls brick; the door iron, the upper half
grated, and opens into a passage running in front of three other
cells; this passage is lighted by two large windows doubly grated,
and has an iron door; at night it is lighted with gas. The land-
scape view from my door, through the window, is that of an area
of some 30 feet square. By special arrangement I have a mattress
and blanket. There is a supply of water in my room, and a sink.
My meals are brought three times a day, about 9, 3, and 7. My
library consists of two New Testaments. I am trying to get a Book
of Common Prayer. The first week there were brought to this
place 10 persons, charged with criminal offenses: men, women and
children. At first I took an interest in their cases, but now I do
not; they all have been guilty, I believe, and they all wished me a
speedy riddance. Nearly everyone I have met with seems to regard
society as his enemy, and a just prey. They look on an offense
simply a skirmish. Profane, lying, and thieving, what a people!
Nearly all recommend me to take the oath of allegiance and enter
the army and desert. But some are opposed to betraying comrades
("going back on 'em"), while others more liberal, advocate any
means as legitimate to save oneself from severe punishment. The
Christmas of '64 I spent in a New York prison. Had I, 4 years ago,
stood in New York and proclaimed myself a citizen of Virginia, I
would have been welcomed; now I am immured because I am a
Virginian tempora mutantur, et cum Mis mutamus. As long as I
am a citizen of Virginia, I shall cling to her destiny and maintain
her laws as expressed by a majority of her citizens speaking
through their authorized channel, if her voice be for war or peace,
I shall go as she says. But I would not go for a minority carry-
ing on war in opposition to the majority, as the innocent will suffer
and not the guilty; but I do not justify oppression in the majority.
What misery have I seen during these four years, murder, lust,
hate, rapine, devastation, war! What hardships suffered, what pri-
vations endured! May God grant that I may not see the like again!
Nay, that my country may not! Oh, far rather would I welcome
Death, come as Tie might; far rather would I meet him than go
through four more such years. I can now understand why David
would trust to his God, rather than to man.

Since I have been placed in this cell I have read the Scripture,
and have found such relief in its blessed words, especially where
it speaks of God's love for man; how He loved him, an enemy, a
sinner, and sent His Son into the world to save His enemy; how
He compels the wretched from the hedges and highways to come

700 XIV. AMERICAN STATE TRIALS.

into the feast; how any may come, and how He bids them, entreats
them. Though it may seem unmanly to accept offers in our adver-
sity which we neglected in prosperity, yet it is even so that with
His assistance I will go up and beg forgiveness, and put my trust
in the saving blood of Him who died for man. Aye, I pray Him to
grant His grace to my mother and sisters and my loved one. If He
is with them, who can be against?

What pleasure I take in the hymns I learned in boyhood! They
come back to me now in my manhood and in my sorrow, and with
God's blessing have wiled away and comforted many a weary and
lagging hour.

Dec. 30th. Last evening the doorman bought me a "Book of
Common Prayer" for $1.00, and it was and will be a source of great
comfort to me. I read over the familiar services and oft-heard
hymns and committed two — "Rock of Ages" and "Sinners Turn,
Why Will Ye Die?" — to memory. There were four accused in the
three cells last night. As yet I have heard but one give good advice
to another. They all with one accord exhort one another to be good
soldiers in warfare vs. society, not to give up stolen property; and,
above all, not to trust to the detectives, who are their natural and
mortal enemies. Such is life! ! !

Dec. 31st. The year is gone; begun for me in ; it sees me,

as it dies, a prisoner in New York. Today I complete my twenty-
ninth year. What have I done to make this world any wiser or bet-
ter? May God bless me in the future; be it in time or eternity.
May I be enabled to meet my trials with resignation, patience, and
fortitude, as one who serves his country and home and people.
The year went out in rain — drizzling rain. Will I see the year 1865
go out? or will I pass away from this world of sin, shame and suffer-
ing?

Jan. 1st, 1865. Sunday, first day of the week and first day of a
new year. To-day I enter my thirtieth year of pilgrimage. Accord-
ing to the calculation of my father's family, I am more than half-
way down life's stream, even if spared by war and sudden death.
But in prying into the future, I can see nothing to induce me to
think that my days will be lengthened to that age of fatality, fifty-
six. Has my life been so crowded with pleasure or good deeds, that
I need desire to prolong it? Alas! no. Though well reared, and
surrounded with very many advantages, I have not done any thing to
give me particular pleasure; nor, on the other hand, have I been
remarkable for the opposite. I am truly thankful that I always
stayed with mother and the girls and tried to do my duty by them;
that is one consolation at least, and also that I never voluntarily
left them. They know not where I am to-day; and every one of
them is this day thinking of me. Little do they know where I am.
Indeed, I doubt if they have heard any thing definite from me for
many a weary month. Oh this war!

This far on life's way I have lived an honest life, defrauding no
man. Those blows that I have struck have been against the society

JOHN Y. BE ALL. 70

of a hostile nation; not against the society of which I am a member
by right, or vs. mankind generally. To-day the thought has obtrud-
ed itself again and again to become an "Ishmael." Your country is
ruined, your hopes dashed — make the best bargain for yourself.
"Remember the history of the civil wars of France, of England —
the examples of Talleyrand, Josephine, &c; of Shaftesbury, Caer-
marthen, Marlborough, &c." To-day my hands have no blood on
them (unless of man in open battle) ; may I say so when I die.
I saw grandfather and father die; they both took great comfort
from the thought that no one could say that they had of malice
aforethought injured them. Better the sudden death, or all the
loathesome corruption of a lingering life, with honor and a pure
conscience, than a long life with all material comforts and the
canker-worm of infelt and constant dwelling dishonor; aye, a thou-
sand times. 0 God, our Creator, Preserver, and Saviour! I pray
give me strength to resist temptation, to drive back the thick-com-
ing fancies brooded of sin and dishonor, and to cling to the faith
of Jesus, who said, "Do unto others as you would that they should
do unto you."

Jan. 2nd. Last night was called out, and a search made of my
room and my person. The captures consisted of two knives. Poor
Grimes! your gift and keepsake was duly declared contraband and
confiscated. They gave me two newspapers, which do seem to bear
out the statements of Southern loss, &c. Savannah, indeed, is
fallen; but its garrison was saved, so that Hardee and Beauregard
have an army. And Butler did not take Wilmington, though the
fleet did storm long and heavy. Poor Bragg has some laurels at
last. Oh that Gen. Lee had 50,000 good fresh veteran re-enforce-
ments! But what are these things to me here! I do most earnestly
wish that I was in Richmond. Oh for the wings to fly to the utter-
most part of the earth!

What would I do without the Bible and Prayer-book, and the faitb
taught in them, best boon of God, the fount of every blessing? That
faith nothing can take away save God.

February 7.

Mr. Brady read a certified copy of a warrant signed by S.
P. Mallory, Secretary of the Navy of the Confederate States
and dated March 5, 1863, appointing John Y. Beall of Vir-
ginia acting Master in the navy of the Confederate States;
also a proclamation dated Dec. 24, 1864 signed by Jefferson
Davis and J. P. Benjamin, Secretary of State, it declared :

Whereas the enterprise made or attempted in the month of Sep-
tember last (1864), for the capture of the steamer Michigan, an
armed vessel of the United States, navigating the lakes on the
boundary line between the United States and the said British North

702 ZIY- AMERICAN STATE TRIALS.

American Provinces, and for the release of numerous citizens of the
Confederate States, held as prisoners of war by the United States at
a certain island called Johnson's Island; and whereas, the said en-
terprise or expedition for the capture of the said armed steamer
Michigan, and for the release of said prisoners on Johnson's Island,
was a proper and legitimate belligerent operation, undertaken dur-
ing the pending public war between the two Confederacies, known
respectively as the Confederate States of America and the United
States of America, which operation was ordered, directed, and sus-
tained by the authority of the Government of the Confederate
States, and confided to its commissioned officers for execution,
among which officers is Bennett G. Burley;

Now, therefore, I, Jefferson Davis, President of the Confederate
States of America, do hereby declare and make known to all whom
it may concern, that the expedition aforesaid, undertaken in the
month of September last, for the capture of the armed steamer
Michigan, a vessel of war of the United States, and for the release
of the prisoners of war, citizens of the Confederate States of Amer-
ica, held captive by the United States of America at Johnson's
Island, was a belligerent expedition ordered and undertaken under
the authority of the Confederate States of America, against the
United States of America, and that the Government of the Confed-
erate States of America assumes the responsibility of answering for
the acts and conduct of any of its officers engaged in said expedi-
tion, and especially of the said Bennett G. Burley, an Acting Mas-
ter in the navy of the Confederate States.

And I do further make known to all whom it may concern, that
in the orders and instructions given to the officers engaged in said
expedition, they were specially directed and enjoined to "abstain
from violating any of the laws and regulations of the Canadian or
British authorities in relation to neutrality," and that the combina-
tion necessary to effect the purpose of said expedition "must be
made by Confederate soldiers and such assistance as they might
(you may) draw from the enemy's country."

THE ARGUMENTS TO THE COURT.

MR. BRADY FOR THE PRISONER.

Mr. Brady. My client spurns any suggestion that has
been made here that he had any part or knowledge of the
fires which have lately broken out in this City. He has the
most unlimited confidence in his judges and knows that such
matters will not affect their minds. Mr. Beall is a gentleman
of highly respectable origin, his ancestors emigrating many
years ago from the north of Ireland.

He was a man of considerable property in the South, and

JOHN Y. BEALL. 703

he entered into the fight which is now going on from such
motives as had impelled men of high intelligence, and men
who, however delusively influenced to such an opinon, really
think as sincerely as we believe in the sacred cause that we
sustain, that they were acting from the most laudable mo-
tives. And while I presume that all the gentlemen in this
room, like myself, feel that this battle should never cease
on our side until we have imposed again the authority and
power of our Government over all the territory we ever
possessed, and even feel, as I certainly do for one, that when
that shall have been accomplished, the power of the Govern-
ment should be felt in other directions, whenever the justi-
fication arises; yet we would be false to our Maker if we
supposed that all the men who fought on the other side were
hypocrites and fanatics, or were impelled by such bad motives
as impelled men to perpetrate crime. It would be incon-
sistent with my views of the majesty and justice of the Al-
mighty that he should permit such men, led by such intel-
lects, to act entirely from unreasonable and blind and wicked
impulses. That we have justice on our side is undoubtedly
in our belief certain. But soldiers, whatever civilians may
do, will never look at an enemy like the one we are contend-
ing against, as utterly bereft of reason, as utterly inferior to
us, and not exactly level with the brutes. The accused has
been, as the gentlemen of this Court have learned from his
diary, I think, intelligently educated; and whether it makes
for him or against him, he has received sound moral culture.
The mother and the sister to whom he so affectionately refers
in that diary, have exercised over him — the mother first, and
the sister afterwards — those ennobling influences which in
the homestead exercise their great power over all of us in
childhood and after life. And being a gentlemon of educa-
tion, a graduate of the University of Virginia, he has his
own views about this case, and has communicated them to
me, and I will present them to you. I have never had the
pleasure of addressing, except as a private citizen, any of
the honorable members of this Court; and my friend Major
Bolles — I am sure he will permit me to call him so, as he

704 XIV. AMERICAN STATE TRIALS.

has acted such toward me — and myself have never been asso-
ciated or opposed in any matter. And for that reason, at
the risk of being considered, for the moment, egotistical, I
wish to say to this Court, on the honor of a gentleman, that
I never have supposed that Lord Brougham 's definition of the
duties or right of an advocate was correct. I have never en-
tertained the idea that it proceeds, in the view of refined
society, or in the view of any instructed conscience, further
than this, that an advocate may fairly present honorably
whatever any man who is accused would have a right in
truth to say for himself, and no more. With that view of the
duty which I am attempting to discharge on this occasion, I
present in the first place the prisoner's proposition that this
Court has no jurisdiction of the matters which are here being
investigated ; that the trial of these offenses should take place
in a general court-martial, organized according to the well-
established principles of the laws of war ; and that a Military
Commission, though it may exercise power over the citizens
of the Government which establishes it, cannot, according to
the law of war and of nations, take cognizance of the specific
accusations presented here. I have never examined this ques-
tion at all until this trial arose; and I say to you, that the
questions involved in this case, except so far as I have de-
rived any knowledge from my general reading as a lawyer,
are new to me. Some of them seem to be novel even in
reference to the large experience of the Judge Advocate Gen-
eral, whose opinions are contained in the Digest of his de-
cisions recently published.

I find by looking through the history of jurisdiction, es-
pecially as to spies, that by an Act of Congress of 1808, it is
in terms declared that a person charged as a spy shall be
tried by a general court-martial. The Act of the 13th of
February, 1862, contains the same provision; but the Act of
1863 provides that persons embraced in the description of
spies as there given, may be tried by a court-martial or mili-
tary commission; and of course it would seem that if it were
within the power of Congress to make such a law, there is a
specific warrant for trying this party before a military com-

JOHN Y. BEALL. 705

mission on the charge of being a spy. How much further it
extends is a little questionable. But there is this peculiarity,
to which I must call the attention of the Court. I refer to
the Revised United States Army Regulations of 1863, page
541. In the Act of 1863 it is provided in the first Section,
that so much of the law of July 17th, 1862, as requires the
approval of the President "to carry into execution the sen-
tence of a court-martial, be, and the same is hereby repealed,,
as far as relates to carrying into execution the sentence of
any court-martial against any person convicted as a spy or
deserter. ' '

You see, therefore, that unless there is something to modify
this, a peculiarity arises from this legislation if a man be
tried before a court-martial.

The Judge Advocate called the attention of the counsel for the ac-
cused to the Act of July 2d, 1864, chapter 215, passed at the last
session of Congress, which extends the provision to sentences of
military commissions as well as court-martials on the trial of spies,
guerillas, etc.

Mr. Brady. I am very much obliged to you, and I am con-
fident that something has occurred in legislation on that sub-
ject, or in the decisions. I believe one of the decisions of the
Judge Advocate General was to the effect that in equity, that
provision would be extended to the cases of conviction before
a military commission. But I had not in my library the
Act of the last session; and that being explained to me, I
have said all that I wish to present on the subject of juris-
diction, and pass from that to another proposition, and that
is, that Capt. Beall in these charges and specifications seems
to be treated in two aspects: one as a mere individual, en-
gaged in the perpetration of an offense against society at
large; and the other in the character of a military man,
offending against the laws of war. If what is here presented
against him in the proof shows that he has only committed
some offense against general society cognizable in the ordi-
nary courts of judicature, then he would be entitled under
the Constitution of the United States to a trial by jury. That
right accompanies him as a citizen of the United States, with-

706 XIV. AMERICAN STATE TRIALS.

out any reference to what any revolting State may declare;
and whatever the South may say or think, we have not given
up a single provision of our Constitution in regard to those
matters, although we have heard of, and the Government has
acted on the idea of the suspension of the habeas corpus, and
done other acts incident and proper to a state of war, so
lhat some of the provisions of the Constitution have been to a
certain degree interfered with. The Court of course perceives
;at once that I am correct in saying he is so treated. I will
refer to this Digest of the opinions of the Judge Advocate
General at p. 79-81, 11th par.

"Where a military commission was invested by the original order
of the general convening it, 'with jurisdiction in all cases civil,
criminal, and in equity, usually triable in courts established by
law' — held that such a tribunal was not authorized to be created,
either by law or usage, and recommended that it be ordered by the
Secretary of War to be dissolved." Very properly, because in that
case it would seem, that in organizing the court the orders grasps
all kinds of jurisdiction incident to the ordinary tribunals, and that
was an assumption of power which the Government through its
proper officers, very properly reprehended. I then read paragraph
16, which is as follows:

"The murder of Union soldiers, for the disloyal and treasonable
purpose of resisting the Government in its efforts to suppress the
rebellion, is a military offense, quite other than the ordinary of-
fense of murder, cognizable by the criminal courts; and citizens
who have been guilty thereof, though in a State where the courts
are open, may be brought to trial before a military commission. In
such case, the circumstances conferring jurisdiction should be indi-
cated in the charge and distinctly set forth in the specification."

That will commend itself to every member of this Court.
It is quite possible that a man in the Confederate service,
ordinarily engaged as a soldier by his Government — I shall
use their phra'se of course — might come within our lines and
perpetrate a murder as an individual, in a way and under
circumstances wholly divested of any relation with his mili-
tary character, for private gain or personal revenge. The
mere fact that he was a Confederate soldier, that he was
within our lines, and that he murdered one of our citizens,
would not render him amenable either to a court-martial or
a military commission, if the circumstances indicated nothing

JOHN Y. BEALL. JQ7

giving it the quality of a military offense. That you very well
understand. That is illustrated in this case of murder, where
the Court and Judge Advocate must state the special cir-
cumstances which give to that murder of Union soldiers the
quality and character bringing it within the jurisdiction of
a military tribunal.

Now, in the expedition of Lake Erie, with which the ac-
cused is connected, and the other attempt on the railroad,
offenses were committed cognizable by the laws, in one case
of Ohio and in the other of New York; punishable by those
laws. And if the evidence should establish that the persons
engaged in either of those acts were acting irrespective of
character as soldiers of the Confederate Government, then
we respectfully submit that neither this Court nor a Court-
martial would have authority to try the accused. If one of
our soldiers should straggle and go into Eichmond, or into
any of the towns along the path of Sherman's army, and re-
main there and secrete himself and commit larceny or bur-
glary, he would not be amenable to any court-martial in the
South for any such act, as we understand it. And we apply
the same principle to the same act perpetrated in our lines
by a Confederate soldier.

In regard to the offense of the attempt to throw this rail-
road train off the track, wholly irrespective of the design
avowed, according to the testimony of the witness Anderson,
to take possession of the safe and money, we have a statute
in New York, passed in 1838, which distinctly makes it an
offense to do any such thing in regard to railroad trains, and
subjects the offender to five years' imprisonment in the
State's Prison, or one year in the penitentiary, according to
the judgment and discretion of the court. The Act of March,
1863, section 30, provides this :

"That in times of war, insurrection, or rebellion, murder, assault
and battery with an intent to kill, manslaughter, mayhem, wound-
ing by shooting or stabbing, with an intent to commit murder, rob-
bery, arson, burglary, rape, assault and battery with an intent to
commit rape and larceny, shall be punishable by the sentence of a
general court-martial or military commission, when committed by

708 XIV. AMERICAN STATE TRIALS.

persons who are in the military service of the United States, and
subject to the articles of war."

Congress deemed it necessary thus to provide for the au-
thority of a court-martial to punish our own citizens when in
the military service, for the crimes of murder, robbery, &c.

But the accused and myself respectfully submit that the
perpetration by a man who happens to be a Confederate sol-
dier, within our territory, of an offense, in the consummation
of which he acts not in any military capacity or quality, is
not an offense which a court-martial or military commission
can take cognizance of. And if you look at this man who is
here now, as here amongst us without a uniform, acting as
a mere aggressor against general society, the punishment of
his offense belongs to the ordinary tribunals and not to this.
I will consider that again in connection with the specific
charge of his being a guerrilla, where it is supposed that the
due authority for taking cognizance of this case will be found.
I pass it for the present, having closed what I intended to
say on the subject of the tribunal which should investigate
this case, and the principles by which they should be gov-
erned.

The accused also insists through the medium of his own
reason and his reading and reflection, that the charge — par-
ticularly the first charge — ' ' violating the laws of war, ' ' is too
general and vague, and does not conform to the requirements
of the law applicable to cases of this character.

When I was first consulted in this case, it was suggested
that the objection to the generality of this charge should be
made at the outset, and that is the usual course. But I said
that so far as that objection was worthy of any consideration,
the honorable members of this Court would consider it quite
as much in their ultimate action as if the objection was spe-
cifically made. And I must say to my client, with your per-
mission, that usually the objection to any thing on account
of its generality is not of practical value, because if it be
erroneous, it is only informing your adversary to make it
more specific. It is of no advantage to the accused; and I

JOHN Y. BEALL. 709

hope the accused, in this instance, will feel, as I do, that this
Court has acted with the greatest possible courtesy — certainly
to me and I think to the accused ; and the Judge Advocate has
not done any thing in this case not eminently professional
and honorable, and I am certain he will do nothing preju-
dicial to the accused except in such manner as becomes an
officer and a gentleman. I lay no stress, therefore, upon this
objection as to the generality of the charge, because I don't
see that there is any substance in it, except the one that
naturally suggests itself to the accused that he might be tried
again, and the charge, "Violation of the laws of war," would
not show what specific offenses were presented against him.
I leave this part of the case with just that remark, and come
directly to what I understand to be the substance of the two
accusations, without reference to the language of the speci-
fications. And we have ourselves met with the charge, in the
first place, that he was a spy; and, in the second place, a
guerrilla.

This charge of being a spy seems, from the language of
these specifications and the tenor of the proof, intended to
apply to him during all the time that he was in the condition
which, for the present, I shall call within our lines, though
I presently may have to ask this Honorable Court to inform
themselves what that phrase means, as applied to the particu-
lar war now being waged between the two sections of our
country. "What are lines ? Now, as to his being a spy, I may
deceive myself, but I see no proof whatever to justify that
accusation. And if, in what I am now about to say, I shall
accidentally bring my mind in conflict with any settled
opinions which you gentlemen of the profession of war may
have in your own minds, you will be good enough mentally
to pardon me and wait until I get through with the demon-
stration I attempt to offer. And not to appear pedantic, as
any man may become, who looks through encyclopaedias and
dictionaries, and gets the reputation of being learned without
the merit ; for as the poet has said :

"Digested learning makes no studenc pale;
It takes the eel of science by the tail;"

710 XIV. AMERICAN STATE TRIALS.

let me come to the definition of the word spy. We know it
comes from the French word espionner — to observe with the
eye.

That definition is certainly not broad enough, because a
blind man might be a spy and a very good one. He may
roam through the country as a blind beggar, and through
his ear receive intelligence to his side of the greatest service.

And, if actual observation with the eye were necessary,
Major Andre was not a spy, for he made no observation
within our lines that could be of any possible service. He
was not there for that object. He came there to meet Ar-
nold, to get despatches with a view to deliver them to Sir
Henry Clinton. He was convicted of being a spy because
he was within the enemy's line to receive intelligence, and
deliver it to the Commander-in-chief of his own army, that it
might be used against the Colonies.

That is a very clear case of being a spy; just as clear as
the case of Davis who was convicted the other day, a man
who was carrying despatches from Canada to the South, and
passing through our lines for the purpose of communicating
that intelligence. And I cannot imagine how all this sym-
pathy is wasted upon Andre, which I am so sorry to say has
found its way into the excellent work of Phillimore on Inter-
national Law. It is true that Andre had on a uniform, but
it was covered over with an outer coat. There was an actual
concealment of the true character of the man, and he was
travelling with a false pass, I may say, from Arnold; and
Arnold had the impudence to insist that Andre should be
surrendered to Sir Henry Clinton, because he was travelling
under this traitorous pass given by him.

And Andre the less deserves our sympathy, because one
letter of his addressed to Col. Sheldon is in existence, men-
tioned Irving 's Life of Washington, showing that he intended
to take advantage of a flag of truce for the purpose of holding
his communications with Arnold. And if any thing on earth
known among men, recognized by society, and sustained by
humanity, is deserving of veneration, it is a flag of truce—

JOHN Y. BE ALL. 1\ \

that Divine aspect of Heaven amidst the grim and bloody
horrors of war.

Now the definitions of the term spy, which I will take the
liberty to mention so as to recall yonr memories to the nature
of the word, are, first, from Webster. He gives three: 1st.
"A person sent into an enemy's camp to inspect their works,
ascertain their strength and their intentions, to watch their
movements, and secretly communicate intelligence to the
proper officer. By the laws of war among all civilized na-
tions, a spy is subjected to capital punishment. 2d. A per-
son deputed to watch the conduct of others. 3d. One who
watches the conduct of others. ' '

Of course, the first is the only one important in reference
to the word spy as used in these charges and specifications.
Bouvier, in his Law Dictionary, says a spy is "one who goes
into a place for the purpose of ascertaining the best way of
doing an injury there. The term is mostly applied to an
enemy who comes into the camp for the purpose of ascertain-
ing its situation in order to make an attack upon it."

Bailey gives, I think, the best definition of spy that I have
found anywhere ; but of its excellence, of course, you will be
the judge. He says a spy is "one who clandestinely searches
into the state of places and affairs. ' '

Major General Halleck, in his International Law and Laws
of war, p. 406, says :

"Spies are persons who, in disguise, or under false pretenses, in-
sinuate themselves among the enemy, in order to discover the state
of his affairs, to pry into his designs, and then communicate to their
employer the information thus obtained. * * * * The
term spy is frequently applied to persons sent to reconnoitre an en-
emy's position, his forces, defenses, &c, but not in disguise, or
under false pretenses. Such, however, are not spies in the sense in
which that term is used in military and international law, nor are
persons so employed liable to any more rigorous treatment than
ordinary prisoners of war. It is the disguise, or false pretense,
which constitutes the perfidy, and forms the essential element of
the crime, which, by the laws of war, is punishable with an igno-
minious death."

We see, therefore, that irrespective of the Acts of Congress,
from the nature and signification of the word spy; from the

712 XiY. AMERICAN STATE TRIALS.

definitions which have been given to it by intelligent writers ;
from what is said here by the General, who is certainly an
excellent authority, there must, to constitute the crime of a
spy, be something in the nature of a disguise, and the pur-
pose of it to clandestinely obtain information to communicate
it to the enemy. Now, let us see what Congress has said on
the subject. I refer to page 502 of the Army Regulations,
and this is somewhat interesting to me, whatever it may be
to the Court — I mean the character of the legislation on this
subject. In 1806, Congress provided: "That in time of war
all persons not citizens of, or owing allegiance to, the United
States of America, who shall be found lurking as spies in or
about the fortifications or encampments of the armies of the
United States, or any of them, shall suffer death, according
to the law and usage of nations, by sentence of a General
Court-Marshal. ' '

It related, you see, exclusively to persons not citizens of
the United States, and did not owe it allegiance ; and no other
persons, by the definition of Congress, could be regarded as
spies. So matters remained, for we had no occasion to legis-
late on the subject at all, until the act of 1862 was passed,
which provides "that, in time of war or rebellion against
the supreme authority of the United States, all persons who
shall be found lurking as spies or acting as such, in or about
the fortifications, encampments, posts, quarters, or head-
quarters of the armies of the United States, or any of them,
within any part of the United States which has been or may
be declared to be in a state of insurrection by proclamation
of the President of the United States, shall suffer death by a
general court-martial. ' '

That you will perceive is a provision made to reach the
case of persons acting as spies in the South, or in such por-
tions of the States, or in such States as were in rebellion ; and
Congress seems to have considered that special legislation was
necessary for that object; and that won't apply to the ac-
cused ; but, in 1863, the last legislation that I know of on this
subject contains the provision: "And be it further enacted,
That all persons who, in time of war or of rebellion against

JOHN Y. BE ALL. 713

the supreme authority of the United States, shall be found
lurking, or acting as spies in or about any of the fortifica-
tions, posts, quarters, or encampments of any of the armies
of the United States, or elsewhere, shall be triable by a gen-
eral court-martial or military commission, and shall, upon
conviction, suffer death."

All persons — there is no longer the distinction that they
shall not be citizens or owe allegiance to the United States.
The term is now large and comprehensive; but they must be
lurking or acting as spies in or about the fortifications, camps,
&c. ; and I would respectfully submit to the Court that the
words "or elsewhere," only mean elsewhere in reference to
something of the same character. They cannot mean any
place in the wide world, because, according to that de-
finition, if a man were out in the middle of the prairies on his
way, or if he were in any State in the South, if he were near
any fortification that we had there, or was away from any
fortification, if he were lurking, it would reach him. There-
fore it seems that so far as Congress has legislated upon this
subject, they only treat as a spy a person who is lurking,
acting specifically as a spy, in or near some place where the
army is, with a view to detect its movements and inform the
enemy; and the question will be whether the prisoner stands
in that category. Now, of course I heard when I was a boy,
before I had ever looked at a law book, that there was a
traditional idea, and it seems to have prevailed to this mo-
ment, that the mere fact of an enemy's being found within
the lines of an adversary, without a uniform, constitutes the
offense of being a spy. We find that that is not strictly cor-
rect, or else it becomes correct by reason of his appearing
without a uniform being equivalent to assuming a disguise.

Well, of course, it is just as much a disguise to take off
a dress by which you are ordinarily characterized, as to put
on one different from your ordinary garb. That I concede,
and it is very plain ; but in the case of the accused, there is
no proof that he ever had a uniform, that he ever owned one
or wore one; and I suppose you, gentlemen, know that, as a
general thing, if not almost invariably, there is no such thing

714 XIV. AMERICAN STATE TRIALS.

as a uniform in the South, and has not been for two or three
years, except in the general resemblance that their clothes
have; and I believe you know that, in almost every case, if
I am correctly informed, where an officer of the Confederate
Government has been captured by our side, he has not had
on any buttons or other insignia to denote his rank or con-
dition. There may have been many cases to the contrary ; but
if I am correctly informed, General Johnson, when captured
by Hancock, had no uniform on. He had a round hat, and
was very ordinarily attired. He was found in our lines, and
in citizen's dress. Where he got that dress; how long he
had worn it ; whether he had had any other for the last five
years, we know nothing about. But whatever may have been
his dress at any time while within our territory, when will
this Honorable Court say that the accused was within our
lines, which is essential to constitute his being a spy? "What
are, in a military sense, the lines of the United States Army
for the purpose of determining the question of one's being
a spy, or any other question ? Now, even if I felt so disposed,
I have not the capacity to give this Honorable Court any
information. That is a matter which military gentlemen un-
derstand perfectly, and they must determine for themselves.
All of us who have been educated at all have some general
idea of it ; but when we seek for definitions from the lexi-
cographers, we derive very little assistance. I find Mr.
Webster, in his dictionary, only gives one: "A trench or
rampart ; an extended work in fortification, ' ' for which de-
finition he cites Dryden. Now, I respectfully ask you, what
are the lines of the United States Army, the being within
which, in disguise, would constitute being a spy, if there were
nothing to take that character away from the accused party?
Do you mean all of the United States not in rebellion? Why
any more or less than all the territory that the United States
ever occupied or governed ? We have never consented to the
idea that we have parted with one inch of that territory
for any purpose. We claim that the United States exist
now as they always did, and exist under the same Consti-
tution as ever, for there is no other Constitution; and what-

JOHN Y. BE ALL. 7 1 5

ever moral progress, whatever intellectual progress, we may
have made, however far we may have advanced toward any
philanthropic or other result, we have had no other Con-
stitution, and we never can have, until we change it in the
mode prescribed in the Constitution itself, and by which we
have just taken a step toward the abolition of slavery. So
that, in a general sense, if the United States now should
get into a war with France or England, according to what
seems to be claimed here in the case of Capt. Beall, the whole
of our territory would be the lines of the United States Army.
Is that so? Or has this word lines a particular signification
in military law and practice more restricted than that? If
it have, you can say to one another what it is ; and when this
Court shall have disposed of its duties in this case, if I have
the pleasure of meeting one of you gentlemen, and there is
nothing improper in it, I shall ask you to construct a defini-
tion which may be of service to me in the future. But I
had supposed the word lines had some reference in general
parlance to a camp. You may make a city a camp or an
entire district, but I don't know that you can make a whole
country a camp. I don't know whether Caesar, Hannibal, or
Alexander, in any of their extensive marches, could have es-
tablished as their camps the whole country through which
they went. I don't suppose that General Sherman could
claim the whole State of Georgia as his camp. All this may
be of very little consideration to you, because you know so
much more about it than I; but I respectfully submit that
the word lines must mean some imaginary or prescribed
territory relating to, and directly affected by the government
oi the army as such; and in that sense I don't see how Beall
was within our lines in a military sense, because he happened
tp be in the State of Ohio taking passage in a steamboat, or
up at Niagara in the State of New York; the State of New
York never for one moment being subject to any kind of
military occupation. I don't see how the State of Ohio or
the State of New York could be within our lines. But that
proposition I submit to your intelligence and judgment.
• But suppose it should appear that the accused was in dis-

716 XIV. AMERICAN STATE TRIALS.

guise, or without uniform, and within our lines; what was
he here for ? Was he here to lurk as a spy ? Why, not at all.
The evidence not only fails to show that, but it directly es-
tablishes that he was not. A man belonging to the Con-
federate service might come within our lines without his uni-
form, for a very lawful purpose. He might come to perform
an act of humanity; he might come to see a friend or rela-
tion, not to speak one word on the subject of war. I think
I may say I know the fact that officers of the armies on
both sides who have had the acquaintance of ladies before
this war have crossed the lines to visit them. And if you
could to a certainty prove that a Confederate officer came
within our lines, or they could prove that one of our officers
went within their lines for a mere social purpose, it instantly
divests him of the character of a spy. I will now refer you
to the Digest of the opinions of the Judge Advocate General,
p. 127:

"That an officer or soldier of the rebel army coming within our
lines disguised in the dress of a citizen, is prima facie evidence of
his being a spy. The disguise so assumed strips him of all claim
to be treated as a prisoner of war. But such evidence may be re-
butted by proof that he had come within our lines to visit his
family, and not for the purpose of obtaining information as a spy.
The spy must be taken in flagrante delicto. If he is successful in
making his escape, the crime, according to a well-settled principle
of law, does not fathom him, and, of course, if subsequently cap-
tured in battle, he cannot be tried for it. Merely for a citizen to
come secretly within our lines from the South, in violation of para-
graph 86, of General Order 100, of 1863, does not constitute him a
spy. A rebel soldier, cut off in Early's retreat from Maryland, and
wandering about in disguise within our lines for more than a
month, and seeking for an opportunity to join the rebel army, but
not going outside our lines since first entering them; held not
strictly chargeable as a spy."

Now, on this subject we find that the accused did not come
here as a spy, nor for any such purpose. He came on one
occasion, if you believe the testimony in this case, to assist
in a demonstration for the relief of the prisoners on John-
son's Island; a specific purpose of war if he acted in a mili-
tary capacity. And in the other case, he was in the State of

JOHN Y. BE ALL. 7J7

New York engaged in the capture of a railroad train, so as
to get possession of the mails and money in the express safe ;
and coming for either of those purposes, he did not come to
lurk or make himself a spy in any way. And on that sub-
ject the Judge Advocate has been good enough to presenf
the letters and diary of this young man to prove his declar-
ations. Now, on the subject of declarations, the law is this,
and it has always been the law : If I prove in reference to a
man, in any proceeding, civil or criminal, his statements,
they must always be taken together; what exculpates you as
well as that which proves you guilty. That is a rule of the
soundest reason. If you should happen to shoot a man, and
another person should arrest you, and should ask, "Who per-
petrated this?" and you should say, "I killed that man, but
I did it in self-defense, " by no law of reason or justice could
the first part of that statement be proved against you and
the rest reserved. And more than that; when you prove a
man's statements or declarations, as they are called technic-
ally, they must be taken as true, unless they are in their
nature incredible, or unless they are disproved by some other
testimony. Now, we have here the letters written by this
man, to which I shall refer — written while he has been in
.custody; and for what he writes, and states, and does, the
accused holds himself responsible.

Mr. Brady read extracts from the three letters, and from
the diary of the accused.

Now, bearing upon this question of whether he was one
who intended to engage in the business of being a spy, I in-
vite your attention to this diary, so impressively read by my
friend the Judge Advocate, the other day, where the accused
declares in regard to himself, that, although he has been im-
perfect— and which of us has not — that although his life
has not been one unvarying progress of what is pure and
good, he only reproaches himself as a Christian reproaches
himself; as any one of us reproaches himself in the silent
watches of the night, when we are apt to suppose ourselves
more completely in the presence of our Maker, and we are
compelled to acknowledge the weakness, and imperfections,

718 XIY. AMERICAN STATE TRIALS.

and folly which have disfigured our lives. It is only in this
sense he has reproached himself. But he takes credit to
himself, and thanks the Lord that he can say: "I never
stained my hand with the blood of my fellow man, except in
lawful battle ; and I cling to my mother and sister, and never
left them voluntarily." I cite these things — fortunately in
this case — as showing who it is you are trying, and as bearing
upon the general probability of this young man, just thirty
years of age, having forgotten the principles that he learned
at the fireside, and by hereditary transmission from honored
and honorable parents — the probability of his doing any
thing except what he intended to be, and regarded as honor-
able warfare, according to the civilized customs of mankind.
And I can assure you that there is nothing in that man's na-
ture which does not make it abhorrent to him, if I am a
judge of human nature at all, to do any thing than what a
misled Virginian would think was just and manly, on the
side to which his conscience, conviction, education, and mili-
tary attainments, led him. I think, therefore, that I am
warranted in saying, that the charge of being a spy is not
only not sustained, but entirely disproved. He did not come
as a spy ; he did not lurk as a spy ; he sought no information ;
he obtained none; he communicated none. He was arrested
at Niagara on his way to Canada, having, according to his
declaration to Mr. Thomas, a witness of the Government, and
whose statement the Government must act upon, reached
Baltimore after the failure of the expedition on Lake Erie,
been provided there with funds, and was making his way to
Canada. He was just exactly in the condition of that soldier
in Early's army who had been wandering about in our lines
in disguise, waiting for an opportunity to return to the rebel
force. And that is precisely what this man was engaged in
doing, irrespective of the assault upon the railroad train to
which I am about to refer. Under those circumstances he
was not a spy — he was any thing and every thing but a spy.
He was acting under a commission; he was in the service of
the rebel Government; he was engaged in carrying on war-
fare; he was not endeavoring to perpetrate any offense

JOHN Y. BE ALL. 719

against society. And if he were not acting under a com-
mission or with authority, but was acting upon his own re-
sponsibility and from the wicked intent of his own heart for
motives of personal malice or gain, he is not amenable to
this tribunal, but must answer to the ordinary courts of the
State within which the crime was committed.

I now proceed to the second subject — the accusation that
he was acting in violation of the law of war as a guerrilla.
On that subject the Judge Advocate General says, p. 66 :

"The charge of being a guerrilla may be deemed a military of-
fense per se like that of 'being a spy,' the character of the guerrilla
having become, during the present rebellion, as well understood as
that of a spy, and the charge being therefore such an one as could not
possibly mislead the accused as to its nature or criminality if
proved, or embarrass him in making his plea or defense. The epi-
thet 'guerrilla' has, in fact, became so familiar, that, as in the case
of the term 'spy,' its mere annunciation carries with it a legal defi-
nition of crime."

I have the pleasure of knowing the Judge Advocate General
well. He is a very able lawyer, and perhaps not surpassed
for genius and eloquence by any man alive — certainly in
forensic efforts there is no man living who, in my judgment,
is equal to him ; and those who have not heard him, have been
deprived of what is a great intellectual treat. I can under-
stand that his intelligence has exhausted that particular sub-
ject to which he refers, of the sufficiency of the charge against
an accused that he is a guerrilla. But I do not find that he
has given his opinion authoritatively on what is the real
meaning of that term, nor to what kind of warfare it relates.
I shall, therefore, look at other authorities in connection with
that subject. Originally, we find from looking to history
that an enemy was regarded as a criminal and an outlaw,
who had forfeited all his rights, and whose life, liberty, and
property were at the mercy of the conqueror. That was
softened down from such rugged asperity by the advance of
civilization and Christianity, but essentially the principle
remains. The soldiers who surrounded Captain Beall on his
way to this Court, and unknown to their superior officer,
when the opportunity presents itself, murmur out in his hear-

720 XIV. AMERICAN STATE TRIALS.

ing words that would denote that he was contemplated by
them as a murderer, an outcast, and a villian, have not
brought themselves to understand, to contemplate the dread-
ful fact, that war is nothing but legalized deception, and
fraud, and murder. If I slay my fellow-being upon a provo-
cation or insult, if he should assail the reputation of my
mother, or offer insult to my sister in my presence, and in a
moment of passion I slay him, by the law of the land I am
guilty of murder, although the circumstances might recom-
mend me to the clemency of the Court. And yet, if in obe-
dience to the call of my country I go against the phalanx of
men who have done me no personal wrong, do not I always
gain my military triumph by the massacre of those innocent
men? If you march your battalions against the conscripted
armies of the South, who suffer but the innocent? while the
guilty leaders — the wicked men who set this rebellion on foot,
have thus far escaped, and seem destined to escape, whatever
may be the issue of the war. Soldiers like you are not to be
horrified by the fact that men engaged in a warfare, who treat
you, and consider you to be their enemies, take possession of
your steamboats, or obstruct railroads, or endeavor to throw
railroad trains off the track. It is very horrible to contem-
plate, when you look at it through the lens of ordinary
society. A man who in times of peace lays obstacles upon the
track for the purpose of throwing off a train in which there
may be innocent women and children, not to speak of full-
grown men, is regarded as a fiend. But has it not been a
customary thing in this war, in all these expeditions called
raids, for leaders to earn brilliant reputations by among other
things tearing up rails, removing them, intercepting and
stopping railroad cars, without reference to the question of
who happened to be in them? Would a general officer, or
any one in command, who sought to interrupt the communi-
cation by rail between two of the enemy's posts, let a train
pass through or stop it ? If he seeks to stop it he must apply
to it the means necessary to accomplish it. Before the days
of railroads, when soldiers were transported by means of
animals attached to some kind of conveyance, did a General

JOHN Y. BE ALL. 72

engaged in warfare, who wanted to stop the soldiers, whether
they were in stage-coaches (if soldiers ever travelled in that
manner) or in caravans, ever stop to see how many innocent
people would suffer by assailing them with weapons of de-
struction? Certainly not. It is death, desolation, mutila-
tion, and massacre, that you are permitted to accomplish in
war. And you look at it not through the medium of philan-
thropy, not through the Divine precept that tells you to love
your neighbors as yourself, but through the melancholy ne-
cessity that characterizes the awful nature of war. You must
change your whole intellect and moral nature to look at it as
it is, the ultima ratio regum — the last necessity of kings.
This being so, legalized war justifying every method, every
horrible resource of interrupting communication, where do
you draw the line of distinction between the act of one you
call a guerrilla and the act of one you call a raider, like Grier-
son? Where do you make the distinction between the march
of Major-General Sherman through the enemy's country,
carrying ravage and desolation everywhere, destroying the
most peaceable and lawful industry, mills and machinery, and
every thing of that nature; where do you draw the line be-
tween his march through Georgia and an expedition of
twenty men acting under commission who get into any of the
States we claim to be in the Union, and commit depredations
there? And what difference does it make if they act under
commission, if they kill the innocent or the guilty ? There are
no distinctions of that kind in war. You kill your enemy;
you put him hors de combat in any way, with some few quali-
fications that civilization has introduced. You may say it is
not allowed to use poisoned weapons, and yet we use Greek
fire. You may not poison wells, but you may destroy your
enemy's property. Even Cicero, in his oration against
Verres, when the question arose whether the sacred things
were to be preserved in warfare, said: "No, even sacred
things become profane when they belong to an enemy."
Now, I don 't perceive that this term ' ' guerrilla ' ' has been in-
terpreted so fully as one would seem to think from a hasty
glance at the Judge Advocate General's opinion to which I

722 XIV. AMERICAN STATE TRIALS.

have referred. At the outbreak of this war the Savannah
privateers were captured; they were held and tried as pi-
rates. I was one of the counsel for the accused. The jury in
the city of New York disagreed. In Philadelphia they con-
victed some of them; and as the honorable members of this
court remember, the Confederate Government proposed re-
taliation, and took an equal number of our men, their lot be-
ing determined by chance, and secured them, to be executed
in case death were visited upon any of the privateers; and
one of the men who was so held was Major Coggswell, who
has just left this room; and for the first time in my life I
had an involuntary client, because the life of my friend
Coggswell was dependent upon the result. Very soon, how-
ever, the Government set aside that idea and gave up the
notion that privateers were pirates.

You remember the case of the "Caroline," which occured
in 1840, when the British Government sent its officers within
our lines and took a steamboat from one of our citizens and
set fire to it, and sent it over the Falls; and you remember
the diplomatic controversy that arose, in which it was
claimed by England that the principle of respondeat superior
must apply ; that it must be settled by the Government whose
agents the perpetrators of that offense were. And although
McLeod was tried in New York and escaped by the strange
defense of proving himself a liar — by proving that he would
not have done the things that he boasted he had done, the
idea has not yet been removed that it was something to be
settled in the international relations of the two Governments.

We see that there may be transactions which do not seem
at the first flush to belong to those of war; and yet on a
closer examination of them they prove to come within that
description. I refer you to General Halleck's book, p. 306:

"Partisans and guerrilla troops are bands of men self-organized
and self-controlled, who carry on war against the public enemy,
without being under the direct authority of the State. They have
no commissions or enlistments, nor are they enrolled as any part
of the military force of the State; and the State is, therefore, only
indirectly responsible for their acts. * * * If authorized
and employed by the State, they become a portion of its troops,

JOHN Y. BEALL. 723

and the State is as much responsible for their acts as for the acts
of any other part of its army. They are no longer partisans and
guerrillas in the proper sense of those terms, for they are no longer
self-controlled, but carry on hostilities under the direction and
authority of the State. * * * It will, however, readily be ad-
mitted, that the hostile acts of individuals, or of bands of men,
without the authority or sanction of their own Government, are
not legitimate acts of war, and, therefore, are punishable according
to the nature or character of the offense committed."

If that be so, you cannot convict any man as a guerrilla
who holds a commission in the service of the Confederate
government, and perpetrates any act of war in that capacity.
He is not self -organized with his command, nor self -controlled.
He is acting under authority of oar foe, and he is regarded
as under so much protection as belongs to the law of war. If
he has a commission, and do any thing which no man may do
belonging to the army under any circumstances whatever,
and commits offenses which military courts have cognizance
of, they will take jurisdiction and award the punishment he
deserves.

You will find that in this case Captain Beall was acting as
an officer of the Confederate government, either in command
himself of Confederate soldiers, or under the command of
some Confederate officer, as in the attempt on the railroad
where Colonel Martin of the Confederate service was in com-
mand. Commissioned officers of the Confederate government
engaged in depredations for the purposes of war within our
territory, are not guerrillas within this definition of General
Halleck, or any definition recognized in any book that I have
had occasion to refer to. So far as that definition and the
like is concerned, that it is ratified by this Government, is
shown from this proclamation of Jefferson Davis, referred to
in specific terms, showing that it was done by authority of
the Government. Now permit me, in this connection, to refer
you to Phillimore on International Law, vol. 3, p. 137 :

"If the unauthorized subject carry on war, or make captures, it
may be an offense against the sovereignty of his own nation, but
it is not a violation of international law. The legal position that
no subject can lawfully commit hostilities, or capture property of
an enemy, when his sovereign has either expressly or constructively

724 XIV. AMERICAN STATE TRIALS.

prohibited it, is unquestionable. But it appears to be equally un-
questionable, that the sovereign may retractively ratify and validate
the authorized act of his subject." He says on page 145: "Guerril-
las are bands of marauders, acting without the authority of the
sovereign or the order of the military commander. A class which,
of course, does not include volunteer corps, which have been per-
mitted to attach themselves to the army, and which act under the
commands of the general of the army."

So that a guerrilla must be a marauder, self -controlled, not
acting by the authority of his Government, without a com-
mission— a mere self-willed and self-moving depredator.
The question is, whether there is any proof of any such char-
acter in regard to Capt. Beall. As to the transaction on Lake
Erie, I accept all the proof which has been given by the
Government. It was an expedition to take possession of that
steamboat, at a distance of some six miles from Johnson's
Island, to run down the United States armed Steamer Michi-
gan, then lying at about the distance of a mile from Johnson 's
Island, and thus give the prisoners on Johnson's Island an
opportunity to escape.

The Judge Advocate said there was no evidence to prove
that the purpose was to run down the Michigan.

Mr. Brady. Oh yes! you have proved the declarations of
the parties engaged in it on board the boat, by Mr. Ashley.
Ashley states expressly that that was the purpose.

The Court said that the witness said the object was stated
to be to capture the Michigan.

Mr. Brady. That was the purpose of the armed expedition
of Confederate soldiers or officers, to take possession of, or
capture the Michigan, and thus aid to release the prisoners
on Johnson's Island. That I call a military expedition; and
that I call an expedition which being carried on by men
under commission from the Confederate government, is legal-
ized warfare and not the conduct of guerrillas. That, how-
ever, must be submitted to your judgment.

Now, what was undertaken at Niagara is proved here by
no witness except Anderson. What the accused said to Mr.
Thomas, within the rule that I have already announced, that
the whole must be taken together and all believed unless it

JOHN Y. BEALL. 725

conflicts with other proofs, has no relation to any such thing
as this charge. When Capt. Beall was arrested by him, the
Captain asked him for what he was arrested, and Thomas
said in substance — I don't profess to give the very words —
''You know as well as I do." And then it was stated that he
was arrested as an escaped rebel prisoner; and Beall said,
"From Point Lookout?" "Yes." "Well," says he, "I
confess that I am an escaped prisoner from Point Lookout. ' '

The records of this Government show, I presume, and
therefore I am warranted in alluding to the fact, that Capt.
Beall was a prisoner, and at Point Lookout, was taken by our
forces and exchanged. In his conversation with Thomas he
was acting the part of human nature. He wanted to be
released if possible. He got the officer to suggest that he was
an escaped prisoner; a thing involving no kind of turpitude
or wrong, for every prisoner is entitled to escape, civil or
criminal. It is the right of every man in society to escape
the consequences of his actions; it is the right of society to
punish him. But what is the proof? He did not say any
thing to him except what I have already narrated. Now,
who is Anderson? He is an accomplice. And what is the
law as to accomplices? They are competent witnesses. They
are often employed from the necessity of public justice.
Their testimony, as an old writer says, is tolerated rather
than approved. The act of turning traitor to your associate
involves what we have regarded from boyhood as the meanest
kind of perfidy. And although upon his testimony alone you
can convict a party, it is always stated, and it is stated by
McArthur on Court-Martials, that he must be corroborated
in something tending directly to implicate him. There is the
only proof. Now, what was the object of the capture of the
express train ? There is no person from the railroad to testify
in regard to it. We don't know what happened to that train.
Somebody went back with lights. We don't know whether
any person was injured or not. Certainly according to An-
derson's testimony there was no attempt made to take posses-
sion of any thing on board. I have not gone into any minutise
of the testimony; it is not necessary. I shall not follow the

726 XIV. AMERICAN STATE TRIALS.

wanderings of the statements made by Weston and Hays,
who come from the station-house, or as to the details of what
was in this carpet-bag, holding it to be entirely immaterial
who owned it. Andersan said it belonged to the accused, and
the accused said it did not. There were candles. They said
they were serviceable when they could not get any other
light. There was a bottle of laudanum in the pocket of the
accused, which he said was for the toothache. Whether he
had the toothache, or intended to poison himself, does not
concern us. He had a right to poison himself, except as
between Capt. Beall and his Maker, or Capt. Beall and his
Government ; but it is wholly immaterial what that was for.
And then as to the proof which my friend deemed it proper
and necessary to give, to which I made no objection, emanat-
ing from this Hays, as to what occurred in the station-house ;
at the very worst, if Hays reported it accurately, it was an
attempt to escape. What would either of you gentlemen do
if you were captured by the enemy ? Get away if you could.
I know I was very much rejoiced when my friend, General
Franklin, made his escape so adroitly. And whether the ac-
cused did or not offer $1,000 to this man, whom he immedi-
ately took into his confidence without any reason for bestow-
ing that confidence ; whether this man is correct in saying
Capt. Beall, when he would not tell him his name, asked
him to take his word for $1,000; all this does not bear upon
this case. Now this escape, which in the law books is some-
times called flight, is sometimes given in evidence as a cir-
cumstance tending to fix crime. If a man should fall in the
street, and should be discovered to be dead, and two or three
others run away, and there are circumstances tending to
prove that they murdered him, the fact that they run away
is an item of evidence against them ; but only an item of evi-
dence. But in warfare if a man is taken prisoner and after-
wards escapes, his escape is sometimes the most poetical
transaction in his life; and his daring in getting away en-
titles him to as much glory as courage on the battle-field.
We read it in romance and poetry, and it stirs our hearts
as much as any thing in the record of battles.

JOHN Y. BE ALL. 727

Therefore, I think, we have two distinct questions here,
and only two : Is the accused proved to be a spy ? And is
he found to be a guerrilla? What proof is there for the pur-
pose of establishing these charges? In the one case we say
he was shown to be within our lines, if within our lines at
all, not for the purpose of acting as a spy, but for other
developed and proved objects inconsistent with his being a
spy. In the other case it appears that he was not a guerrilla
because he was a commissioned officer in the Confederate
service, acting under authority of that government during
war, in connection with other military men, for an act of war.
If so, then he is not amenable to this jurisdiction. If I were
before a tribunal who had not been accustomed to look at
war with its grim visage, with the eye of educated intelli-
gence, I should apprehend that the natural detestation of
violence and bloodshed and wrong would pursue this man.
But however wrong the South may be — however dismal its
records may remain in the contemplation of those who have
the ideas of patriotism that reside in our minds — yet not one
of you, gentlemen, would even be willing to acknowledge to
any foreigner, hating our institutions, that you did not still
cling to the South in this struggle, wrong and dreadful as it
has been, and award them the attributes of intelligence and
courage never before perhaps equalled, and certainly never
surpassed, in the annals of the human race.

Bad as their acts may be in our contemplation, have you
any doubt that in the conscience of that man, in the judg-
ment of his mother, in the lessons he received from his father,
he has what we may think the misfortune of believing himself
right?

That mother and those sisters who are watching the course
of this trial with their hearts bleeding every instant to think
of the condition of the son and brother, who would not care
if he should be shot down in one hour in open battle, con-
tending for the principles which they, like him, have ap-
proved ; if he were borne back to that mother like the Spartan
son upon a shield, she would look at his corpse and feel that
it was honored by the death he received. But she would be

728 XIV. AMERICAN STATE TRIALS.

humiliated to the last degree if she supposed that he had de-
parted from the legitimate sphere of battle, and turned his
eyes away from the teachings of civilization, and become a
lawless depredator, and deserving and suffering ignominious
death.

I leave his fate in your hands. I have endeavored to avoid
any attempt to address to you any thing but what becomes
the sober reason of intelligent men. There are occasions
when the advocate may attempt, if he possesses any endow-
ment of that nature, what is commonly called eloquence,
what is known as oratory. But I never consider that in a
court like this any address of that nature is appropriate in
any sense or degree. This is a thing to be reasoned upon.
You will view it through the medium of reason with which
the Almighty has endowed you. And I think I may say to
my client, that whatever conclusions this Court reaches, it
will be that of honorable and intelligent gentlemen who
would convict him, if at all, not because he is a southern
officer, but because it is the imperious necessity of the law
that they deem to be sufficient.

THE JUDGE ADVOCATE'S ADDRESS.

Major Bolles. Mr. President and Gentlemen of the Com-
mission: It would be entirely improper, if it were at all
possible, for me to imitate the example and follow the course
of the eloquent counsel for the accused. He has a right to
be eloquent. He could not help being so even if it were
wrongful. I have no such right. He is the advocate, I am
the Judge Advocate. It is my pleasant duty to represent, not
one side but both sides of the case; absolute and entire jus-
tice; the law as it is, and as it affects the case; the facts as
they are, and they affect the Government and the accused.
It is the duty of the advocate for the accused to seek for
his acquittal. It is never the duty of the Judge Advocate
to seek for the conviction of the accused ; but simply to take
care that the facts and the law are spread before the Court
and that strict justice be done.

JOHN Y. BE ALL. 729

In order that justice may be done in this ease, I shall, be-
fore proceeding to the body of my address, ask the attention
of the Court to one or two preliminary observations suggested
by the remarks of the counsel for the accused.

No reference has been made by the prosecution, and none
will be made, to any supposed connection of the accused with
the November attempt to destroy the City of New York by
fire, or with any other matter which is not described in the
charges and specifications on which he is tried. The Court
cannot, and would not, go beyond the case thus presented,
and the evidence adduced by the prosecution.

Allusion has been made in the argument, but I must re-
mind the Court that there is no fact in evidence to warrant
any allusion, to the wealth, family, ancestry, and university
education of the accused. T«hese are matters quite outside
of the case, and have nothing to do with the real inquiry be-
fore this tribunal.

Something was said of the accused, as appearing by gov-
ernment records, to have been at some time a prisoner of war
at Point Lookout. But no such record is shown. The only
evidence in the case that connects him with Point Lookout,
is his false statement to policeman Thomas in December,
that he had escaped a few days before from that place, in
company with Anderson : whereas we prove him to have been
at large in September, and to have been passing to and from
Canada during the week of his arrest.

It has been argued to you that the accused is honorably
devout, and of tender conscience; and appeals are made to
his diary for proofs. "What shall we, what must we, think
of Tus conscience who within a fortnight of that atrocious
attempt upon the railroad, could devoutly thank God, as he
does in that diary, that he has never committed any out-
crying sin.

You are asked to show some forbearance toward him on ac-
count of his hearty and conscientious belief that the cause in
which he has been engaged, the rebel cause, is a righteous and
just cause. But on page 11 of that diary, he states amongst
his ' ' consolations, ' ' that he never, of his own accord, left the

730 XIV. AMERICAN STATE TRIALS.

home circle of his mother and sisters, — "I never voluntarily
left them." Such is his real relation, involuntary, to the
rebel service. I cannot regard him, therefore, as a firm
believer in the justice of the insurgent cause.

Two papers have been put in evidence by the accused with-
out objection on my part : his letter of appointment as
master's mate in the rebel navy, and the "manifesto" of Mr.
Davis in regard to Burley and the Lake Erie expedition. I
was willing to admit that Beall was a rebel officer, and that
all he did was authorized by Mr. Davis ; because, in my view
of the case, all that was done by the accused, being in vio-
lation of the law of war, no commission, command, or mani-
festo could justify his acts. A soldier is bound to obey the
lawful commands of his superior officer. Our 9th article
of war punishes him for disobedience to such commands, but
none other. His superior officer cannot require or compel any
soldier to act as a spy, or as an assassin. If, then, such un-
lawful command be given and obeyed, its only effect is to
prove that both he who gave and he who obeyed the com-
mand are criminals, and deserve to be gibbeted together.
When did a spy ever seek to justify himself by pleading the
command of his general? How can the manifesto of the
arch-rebel screen any of his subordinates who has trampled
under foot that law of war — for war hath its laws no less
than peace — which is binding upon all alike, from the rebel
president to the rebel raider?

In this connection I will read some extracts from the
opinions of the Chief Justice of the Canadian Court of
Queen's Bench and of his associates in the case of Burley,
who was concerned, with the accused, in the seizure and
plunder of the Lake Erie steamboats. The Chief Justice
said:

"But, conceding that there is evidence that the prisoner was an
officer in the Confederate service, and that he had the sanction of
those who employed him to endeavor to capture the Michigan, and
to release the prisoners on Johnson's Island, the manifesto put
forward as a shield to protect the prisoner from personal responsi-
bility does not extend to what he has actually done; nay, more, it
absolutely prohibits a violation of neutral territory or of any rights

JOHN Y. BEALL. 73

of neutrals. The prisoner, however, according to the testimony,
was a leader in an expedition embarked surreptitiously from a neu-
tral territory; his followers, with their weapons, found him within
that territory, and proceeded thence to prosecute their enterprise,
whatever it was, into the territory of the United States. Thus assum-
ing their intentions to have been what was professed, they deprived
the expedition of the character of lawful hostility, and the very
commencement of, their enterprise was a violation of neutral terri-
tory and contrary to the letter and spirit of the manifesto pro-
duced."

In the same case Judge Haggerty observed, that:

"Had this prisoner been arrested on the wharf in Detroit, as he
stepped on the Philo Parsons, and avowed and proved his character
of a Confederate officer, he would have been in imminent danger of
the martial rule applicable to a disguised enemy. Had he been
secretly joined there by twenty or thirty persons starting over from
the neutral shores of Canada, and then by a sudden assault de-
stroyed some national property, or seized a vessel lying at the
wharf and taken the money from the unarmed crew, I think they
would, if captured in the act, have great difficulty in maintaining
their right to be treated as prisoners of war, with no further re-
sponsibility. In the Russian war, I think we should hardly have
allowed such a mild character to a like number of Russians com-
ing over stealthily from the friendly shores of Detroit to burn,
slay, and plunder in Windsor. All the prisoner's conduct, while
within our jurisdiction during this affair, repels the idea of legiti-
mate warfare. A British subject, without the Queen's license and
against her proclamation, in the service of one of the belligerents,
acting in concert with persons leaving her ports on the false pre-
tense of peaceful passengers, to wage war on a friendly power — no
act of his raises any presumption in favor of his being in good faith
a soldier or sailor waging war with his enemy."

Mr. Justice Wilson made use of the following language :

"The evidence returned to us shows, prima facie, that the prisoner
committed a robbery in the State of Ohio, one of the United States.
But it is answered, first, that the prisoner held a commission as
Acting Master in the navy of the Confederate States. The holding
of this or any other commission, does not authorize him, mero motu,
to wage warfare from a neutral territory on the unoffending and
non-belligerent subjects of the country at war with the nation whose
commission he holds. He says he seized the Philo Parsons as an
act of war, with intent to liberate the prisoners on Johnson's
Island; but for this act he produces no order of any superior officer,
and the evidence does not show that he had any such order. He'
says this robbery was at worst an excess of a belligerent right,
which was merged in the principal act. Now, what was the prin-

732 XIV. AMERICAN STATE TRIALS.

cipal act of war performed? Under the pretense of being a pas-
senger, he went on board a freight and passenger steamboat at
Detroit. As a favor, he requested the master to touch at Sandwich,
a British port, to take in three persons as passengers, which was
done. The boat proceeded on its regular voyage to Amherstburgh,
a town in this Province, near the mouth of the Detroit River, about
fourteen miles below Sandwich. Here about twenty men, dressed
in the ordinary attire of the farming people of the United States,
with one rough trunk, tied round with a cord, and no other bag-
gage, supposed to be citizens of the United States returning to their
homes after an absence to escape the draft for the recruiting of
the army of the United States, came on board the steamer. The
prisoner and his three fellow-passengers affect no knowledge of
the last twenty. The course of the vessel to Sandusky, from the
mouth of the river, is southeast. She had to pass a number of
islands. The northerly are British, the southerly American. The
boundary line of this Province was north of the Bass Islands, and
thence between Pele Island and Sandusky Island. Johnson's
Island is said to be fourteen miles from the Middle Bass Island,
and two miles from Sandusky. Nothing occurred to excite sus-
picion, or cause alarm, until the boat was clearly within the ter-
ritory of the United States. Suddenly, the prisoner presented a
revolver at Ashley, and drove him, at peril of his life, into the
ladies' cabin. Beall, one of his confederates, overcame the mate in
a similar manner. The other twenty, more or less, rushed to their
trunk, armed themselves with revolvers and hatchets which it
contained, acted under the orders of Beall and the prisoner, and
the boat became at once under their control. So far, neither of the
leaders declares his reason for this proceeding. It was rumored
that their object was to liberate the prisoners at Johnson's Island.
After some hours, the boat landed at the Middle Bass Island, hav-
ing taken possession of a small steamboat, the Island Queen. At
this island, just before Ashley was put on shore, Beall and the
prisoner, with revolvers to enforce the command, demanded his
money. After getting what was in his drawer, the prisoner insists
he has more, and Ashley took from his waistcoat pocket a roll of
bills, about $90 he supposes, which the prisoner and Beall share
between them. These proceedings, so mean in their inception, and
so ignoble in their development and termination, we are asked to
consider as acts of war, and to accord to the prisoner belligerent
rights. What is there in all this which constitutes the act of war?
If the object were to release the prisoners, from all that appears
they never were nearer than fourteen miles to Johnson's Island.
Was the seizure of this unarmed boat per se an act of war? for
it has been argued that the robbery was merged in the higher act.
The seizure of the boat, for whatever purpose, was one thing, the
robbery of Ashley quite another, and in no way that we see, in
furtherance of the design now insisted upon, necessary for its ac-
complishment. But is not the bona fides of the enterprise matter
of defense which a jury ought to try? Such a trial can only be had

JOHN Y. BEALL. 733

where the offense was committed, and we cannot doubt but that
justice will be fairly administered.

"Then we are told that although the prisoner has no orders to
show authorizing what he did, he has the manifesto of the Presi-
dent of the Confederate States, avowing the act and assuming it,
and therefore he is not subject to this charge at all. We accord to
that Confederacy the rights of a belligerent, as the United States
has done from the day it treated the soldiers of the revolted States
as prisoners of war;' but there is an obvious distinction between an
order to do a belligerent act and the recognition and avowal of
such an act after it has been done. The one is an act of war, the
other an act of an established government. The one is consistent
with what Great Britain acknowledges, the other is not. For as
judicially to give effect to the avowal and adoption of this act would
be to recognize the existence of the nationality of the Confederate
States, which at present our Government refuses to acknowledge.

"Giving for the moment this manifesto its full force, it distinctly
disclaims all breaches of neutrality; but it is clear that this expe-
dition took its departure and shipped its arms from our port.
But does it assume the responsibility of this seizure and all that
was done upon it throughout? If not, it is neither justification
nor excuse. I see no authority for the doing of the act, and as an
assumption of what was done, therefore, the whole justification
fails.

"The attitude of the United States towards us is no concern of
ours. Sitting here, whatever they do, while peace exists and this
treaty is in force, we are bound to give it effect. We can look with
no favor on treachery and fraud, we cannot countenance warfare
to be carried on except on the principles of modern civilization.
We must not permit, with the sanction of law, our neutral rights
to be invaded, our territory made the base of warlike operations,
or the refuge from flagrant crimes. Peace is the rule, war the ex-
ception of modern times; equivocal acts must be taken most
strongly against those who, under pretense of war, commit them.
For these reasons I think the prisoner must be remanded on the
warrant of the learned Recorder."

Mr. Davis' manifesto in terms forbids all violations of neu-
tral rights, and proposes to ratify only "a proper and legiti-
mate belligerent operation, ' ' to wit, the capture of the United
States armed steamer Michigan, and the release of rebel
prisoners at Johnston's Island.

But whatever had been its language, the manifesto could
not have justified any violation of the laws of war committed
for the sake of accomplishing "a proper and legitimate
belligerent operation," such as robbing, stealing, and plun-
dering in disguise ; and, as matter of fact, the acts of the ac-

734 XIV. AMERICAN STATE TRIALS.

cused had no reference to that "operation," not one particle
of proof is in the case that any design was formed, or effort
made, by the plunderers of the Philo Parsons and Island
Queen to effect that "operation."

You have been asked to reject as unworthy of credit the
testimony of George Anderson, in regard to the outrage near
Buffalo, because he was an accomplice; and it has been said
that the laws regard such evidence with suspicion. There is
no arbitrary rule of law on this subject. According to
Benet's Military Law, pp. 242, 243, you are at liberty to be-
lieve or disbelief the testimony of an accomplice according
to your own convictions; and upon his testimony, with or
without corroboration, j^ou may convict the accused.

The rule of law is equally reasonable in regard to the ad-
missions of the accused, oral or written. If the prosecution
puts in a part, it must put in the whole ; but when such evi-
dence is actually before you — so says Benet, p. 264 — it rests
with you to either believe or disbelieve either the whole or a
part. If, then, you look at the letter of the accused to Mr.
Lucas, and find that it describes the accused as an officer in
the rebel navy, you may believe it ; and if you find it assert-
ing "you know that I am not a guerrillero or a spy," you
may believe, or disbelieve that the accused so thinks. But
you will never commit the error of supposing that what he
asserts on that point is any thing more than his opinion ; and
upon the same facts which led the accused to that mistaken
opinion, you may be compelled by the law and the evidence
to find him guilty.

At this stage of the case, as well as at any time, I may
answer the remarks of the learned counsel upon the legiti-
mate scope and meaning of the phrase "within our lines."
He has quoted an Act of Congress, which, as he thinks, and
thinks correctly, punishes spies that are found in the in-
surgent States, and he has also referred to the later Act
which punishes them wherever found; an Act into which the
word "elsewhere" was introduced for the purpose of cover-
ing all possible cases; and yet he is anxious to have your
definition of the words ' ' within our lines. ' ' Those words do

JOHN Y. BE ALL. 735

not appear in this case in charge, specification, or evidence.
But there can be no doubt of their meaning in the military
mind. Every man is within our lines who enters a loyal
State by sea or land, with hostile purposes. Any rebel emis-
sary who has first violated the rights of Canadian neutrality,
and then in the guise of a peaceful citizen crossed into our
territory, along the whole northern frontier of which are
military posts and garrisons, is within our lines; and if he
be a rebel officer or soldier, the law pronounces him to be a
spy ; and unless he can prove that he is not, he will be hung
as a spy just as certainly as he is caught and brought to
trial. — Judge Advocate Jlolt's Digest, p. 127.

' ' Within our lines, ' ' means any spot within the loyal States
where an enemy could do us a mischief, be it the Lake Shore
Eailroad, where the accused attempted his last enterprise,
or the City of New York, in which the November incendiaries
endeavored to destroy the commercial metropolis of the
country, or Boston or Portland Harbor, into which rebel
pirates or privateers might seek entrance, or a traitor spy
might try to pilot them. There is no shore or border so re-
mote that it is not now within our lines, and lines that
bristle everywhere with bayonets, and frown everywhere with
forts and cannon. The phrase ' ' within our lines " is as com-
prehensive as is the word "elsewhere" in the Act of Con-
gress of March 3, 1863, sec. 38, as given on page 542 of the
Revised Army Regulation, which provides that "All persons
who in time of war or of rebellion against the supreme au-
thority of the United States, shall be found lurking, or acting
as spies, in or about any of the fortifications, posts, quarters,
or encampments of any of the armies of the United States
or elsewhere, shall be triable by a general court-martial, or
military commission, and shall, upon conviction, suffer
death."

The section thus quoted, I beg leave to say, shows that a
spy, whoever he may be, and wherever found within the
broad limits of the United States, "lurking or acting," is
amenable to a military commission like the Court which I
now have the honor to address, as well as to a court-martial ;

736 XIV. AMERICAN STATE TRIALS.

and thus furnish an answer to that question of jurisdiction
which was raised by the accused, and which his counsel sug-
gested in the beginning of his address as the first proposition
of his client's, and not as his own.

There can be no doubt upon this question of jurisdiction.
It is true, as was decided by the Judge Advocate General on
p. 79 of Holt's Digest, cited by Mr. Brady, that a military
commission cannot lawfully be clothed with power "in all
cases civil and criminal, and in equity."

But the same authority, on the same page, has decided

that ' ' many offenses which in time of peace are civil offenses,

become in time of war military offenses, and are to be tried

by a military tribunal, even in places where civil tribunals

exist. ' '

Major General Halleck, who is himself, as the counsel for
the accused admits, of great authority in matters of public
law, proclaimed the same doctrine in his celebrated Missouri
Order, No. 1, quoted by Benet, p. 15.

Will the Court permit me here to answer the claim set up
by the accused to be tried by a jury for the crimes now
charged against him in connection with the seizure of the
steamboats and the attempt upon the train of cars? It is
true that if these enormities had been committed in time of
peace, or by ordinary citizens, rogues, and desperadoes, they
would have been mere municipal or civil offenses, and the
perpetrators would be amenable to the civil courts and en-
titled to the trial by jury. But the accused is not prose-
cuted for a civil offense. He is, by the theory of this case,
a military offender, a violator of the law of war.

Mr. Brady himself admits, and quotes Holt's Digest, p. 79,
par. 16, to show that murder, which is a civil offense under
ordinary circumstances, may and does, in time of war, when
committed for disloyal and treasonable purposes, become a
military offense, and may then be tried by a military court,
without the interposition of a jury. In time of war, the
offender being a rebel officer in disguise, the question of in-
tent, the quo animo, is very easily determined. In this case it
is very clear that personal advantage was not the motive that

JOHN Y. BEALL. 737

led to the seizure of the steamboats, or the attempt on the
railroad. To destroy the commerce of the lakes was one of
the objects avowed by the raiding party on Lake Erie; to
inflict great injury upon great numbers of their Yankee
enemies, and not the crazy expectation that a gang of five
rebels could overcome and plunder a thousand passengers,
was the purpose of the railroad attack.

The acts charged and specified being military offenses are
triable by a military court, and the accused has no constitu-
tional right to a jury trial.

Says the Judge Advocate General (Digest p. 77-80) :

"The amendment of the Constitution, which gives the right of
trial by jury to persons held to answer for capital or otherwise
infamous crimes — except when arising in the land or naval forces
— is often referred to as conclusive against the jurisdiction of mili-
tary courts, over such offenses when committed by citizens. But,
though the letter of the article would give force to such an argu-
ment, yet in construing the different parts of the Constitution to-
gether, such a literal interpretation of the amendment must be
held to give way before the necessity for an efficient exercise of the
war powers which is vested in Congress by that instrument. A
striking illustration of the recognition of this principle by the legis-
lation of the country since an early period of our history is fur-
nished by the 57th Article of War, in the fact that it has, from the
beginning, rendered amenable to trial by court-martial for certain
offenses" (holding correspondence with or giving intelligence to the
enemy), "not only military persons, but all persons whatsoever."

I will add, that by the act of Congress of 1806 in regard
to spies, the same jurisdiction of courts-martial was extended
to that class of offenders, that they might suffer death "ac-
cording to the law and usage of nations."

If citizens may thus be subjected to trial by such courts,
a fortiori, may enemies and armed rebels be deprived of the
trial by jury.

Pending a war like this, not less than in all ordinary wars,
that branch of the law of nations of which Congress speaks
in the act of 1806, already quoted, as "the law and usage of
nations" in regard to spies, i. e., "the law of war;" that law
of war exists and takes effect everywhere within the territory
of the belligerents, and everywhere by the instrumentality of

738 XIV. AMERICAN STATE TRIALS.

military tribunals, and without a jury, punishes every offense
against natural right and justice which is committed by
soldiers or citizens, for disloyal and treasonable purposes.

The accused, not his counsel, is of the opinion, as Mr.
Brady informs us, that the 1st charge does not set forth with
sufficient particularity the offense alleged against him. By
the well-settled rule of law, the charge is always thus brief
and general.

The Judge Advocate General {Digest, p. 66) has decided
that the charge of "being a guerrilla" is sufficient. It is in
the specification which follows the charge, that the circum-
stances constituting the offense, and describing its perpetra-
tion, are to be fully and clearly set forth. DeHart, p. 145.
Benet, p. 52.

Neither the accused nor his counsel can complain that the
specifications under the 1st charge are not sufficiently ex-
plicit.

I come now, Mr. President, to the inquiry, what are the
true legal character and definition of the offenses with which
the accused stands charged? I. What is it, in law, to be a
spy, and do the facts proved come up to the legal require-
ments? II. What is it, in law, to carry on irregular war-
fare, and has the accused been found guilty of this?

I. The learned counsel for the accused is dissatisfied
with every definition of a spy that is comprehensive enough
to cover the case on trial ; and is a little inconsistent in the
matter. Bouvier, in his Law Dictionary, defines a spy to
be "one who goes into a place for the purpose of ascertain-
ing the best way of doing an injury there."

Why is not the counsel for the accused content with
that? The accused was an enemy, who came with hostile
intent into both Ohio and New York, to ascertain the best
way of injuring their peaceable and unsuspecting inhabi-
tants. Bailey, in his dictionary, presents a definition which
almost seems to satisfy the counsel for the accused. Ac-
cording to that venerable lexicographer a spy is one who
"clandestinely searches into the state of places and

JOHN Y. BEALL. 739

affairs." The accused came aboard the Philo Parsons
clandestinely, with the heart and hate of an enemy, but in
the dress and with the profession of a friend; so did he
clandestinely enter the Island Queen; so did he clan-
destinely visit Buffalo. Deception, disguise, concealment,
falsehood, stamp their guilty image and superscription on
all his acts, and on all his declarations. His dress belies
and disguises his real character. If Andre in unifrom
was rightly held to be in disguise because of his citizen's
overcoat, is Beall not disguised when clad as a citizen
throughout, from hat or cap to boots? His story to officer
Thomas was a tissue of falsehoods, for he denied his real
name and assumed another; he asserted that he was in the
rebel infantry, and not in any other branch of the service,
when he ivas a naval, and was not a military officer; his ac-
count of his recent escape with Anderson from Point Look-
out, and all its details, was untrue. Do I say that his
dress disguises his real character? It did so at the time of
his coming within our lines; but now every disguise is a
proof, an exposure, a demonstration, of his genuine char-
acter, because he is a spy.

The counsel for the accused believes that Major Andre
was a spy. He also believes that Davis, whose case I do
not remember, was properly held to be a spy. According
to Mr. Brady's statement, Davis was a rebel officer who was
on his way from Canada to the South, carrying despatches,
and proceeding without delay through the intervening loyal
States, holding communication with no one on his way. Ac-
cording to this admission the true definition of spy includes a
class of men who come within the limits of the loyal States
from a neutral and friendly territory, not to obtain informa-
tion, but simply to cross our territory as errand boys, carry-
ing papers which contain information.

Is the learned counsel quite consistent, then, when he goes
on to quote as entirely satisfactory to him, Maj. Gen. Hal-
leck's definitiion of a spy; a definition which requires that the
spy should have come within our limits not only to make

740 XIV. AMERICAN STATE TRIALS.

discoveries, but "to communicate to their employers the in*
formation thus obtained?"

This definition does not cover the case of Davis; nor does
it cover the case of those who come of their own accord and
have no employer ; nor of those who are directed, or are deter-
mined, to act on the information they gather, instead of com-
municating it to any one. Gen. Halleck himself very prop-
erly says, that "it is the disguise or false pretense which con-
stitutes the perfidy and forms the essential element of the
crime. ' '

It is very clearly immaterial whether the spy comes as prin-
cipal or agent, to get information for his own guidance or that
of others, or whether the information is to be communicated,
or to be retained and acted on without communication or con-
sultation ; and the true definition of a spy would include any
man who comes in disguise, or clandestinely, into his enemy's
territory, to obtain and use or to obtain and transmit informa-
tion with hostile intent ; or who, being within that territory,
treacherously seeks information to be used by himself or
others for hostile purposes.

In the General Orders of the War Department, No. 100
(April 24, 1863), paragraph 88, it is said that "a spy is a
person who secretly, in disguise or under false pretenses,
seeks information with the intention of communicating it to
the enemy." If to this definition had been added the words
"or of using it as an enemy," it would, I think, have been
exact and all comprehensive.

But why linger and dwell in dictionaries and definitions,
when, so far as this case is concerned, the legal character of
the accused as a spy is settled by authority beyond all ques-
tion?

The learned Dr. Lieber, in his letter on Guerrilla parties,
thus states the law: "A person proved to be a regular soldier
of the enemy's army, found in citizen's dress, within the lines
of the captor, is universally dealt with as a spy." The
learned Judge Advocate General, at the head of our Bureau
of Military Justice, has again and again decided that the

JOHN Y. BE ALL. 74]

fact that "an officer or soldier of the rebel army comes within
our lines disguised in the dress of a citizen, is prima facia
evidence of his being a spy," and that "the disguise so as-
sumed strips him of all claim to be treated as a prisoner of
war." (Digest, p. 127.) It is true, as the Judge Advocate
further says : ' ' that such evidence may be rebutted by proof
that he had come within the lines to visit his family, and not
for the purpose of obtaining information as a spy." (Digest,
p. 127.) "It is also true, that if the spy succeeds in making
his escape the crime does not follow him; and if he be sub-
sequently captured in battle, he cannot be tried for it." (Di-
gest, p. 127.)

2. The second branch of this first inquiry is now to be
considered, viz. : what are the facts proved to which those
rules of law are to be applied?

It is proved and admitted that the accused was in the mili-
tary and naval service of the rebel authorities. He pro-
duces his warrant as Master's Mate in the navy; he told offi-
cer Thomas that he was an infantry officer; his counsel con-
tends that in the railroad enterprise he was serving under
Col. Martin.

It is proved, in the second place, that he came three several
times, in the disguise of a citizen, from Canada to Ohio and
New York ; first, as a passenger in the steamer Philo Parsons;
next, as a railroad operator, when the brave party of four,
Martin, Headley, Beall, and Anderson, attempted in vain to
lift a rail from the track ; and finally, when that heroic band,
enlarged by one new recruit, and refreshed by two nights of
sleep at Port Colborn, returned upon their chivalric errand,
and attacked the Dunkirk train.

If, as the counsel for the accused argues, the statement of
Anderson the accomplice in this railroad enterprise, is not to
be believed — and all that you know in regard to the accused
in New York, are the facts sworn to by Thomas, who arrested
him — that he was in disguise, that he gave a false name, and
that he made divers untrue statements in regard to himself ;
then is his character as a spy still more strongly proved, ac-

742 XIV- AMERICAN STATE TRIALS.

cording to Mr. Brady, because lie is here, a rebel officer, in
disguise, practising deception, and without any assigned pre-
text or excuse.

Are these two facts and the legal conclusion therefrom,
met by any explanation, by any rebutting testimony?

Has any evidence been offered to change this fatal prima
fades of the case? The accused came to Ohio, says Mr.
Brady, to perform a belligerent act. Unfortunately there is
no such proof. He might, says Mr. Brady, have come to
Ohio, and to New York on some innocent errand, or some
errand of humanity. He might, indeed. But where is the
proof that he didf Has he purged himself of his criminality
as a spy in Ohio or New York? Has he, in the language of
the authorities which I have read, returned to the belligerent
army, or to the navy in which he holds rank, and been cap-
tured in battle? This is not even claimed or argued. He
did go back to Canada, whose neutral rights he had violated,
in September. He did attempt to go back to Canada in De-
cember. But he did not return to the insurgent States, nor
was he taken prisoner in lawful or honorable warfare. Now,
Mr. President and gentlemen of the Commission, I do not
ask you to set aside, but I do ask you not to enlarge or to dis-
regard the narrow limits of that rule of law which dis-
charges from guilt a spy who, having returned to the field of
legitimate warfare, has been captured on the field of battle.
This rule is arbitrary. It is an exception to the general rule
of civilized war, which inflicts ignominous death on all who
violate its humane regulations by acts of perfidy, baseness,
and treacherous hostility. It is your duty to see that this
exception is not enlarged.

II. I now proceed, may it please the Court, to the inquiry
as to the law and the evidence in support of specifications
1st, 2d, and 6th, under Charge I. As matter of law, do
the facts alleged in these specifications constitute violations
of the laws of civilized warfare, and, as matter of fact, are
those allegations proved?

I shall not spend much time in answering what was so

JOHN Y. BEALL. 743

ingeniously argued by the learned counsel in regard to the
legal meaning of the word guerrilla. That word occurs only
in the 6th specification, and is there quite immaterial — mere
surp'u. a0e — and might be stricken out and leave that speci-
fication as complete as are the 1st and 2d specifications.

I might admit, for the purpose of argument, that if the
word guerrilla had now, and in our service, the same signi-
ficance which belonged to it at the time when Gen. Halleck
published, in San Francisco, his work on International Law,
there would be weight as well as ingenuity in Mr. Brady's
argument; though even then I should ask you merely to
omit the word in your finding of guilty on the 6th specifi-
cation. But, as the Judge Advocate General (Digest, p. 66)
informs us, this word guerrilla, during this unhappy war, has
acquired a peculiar and well-settled meaning, so that it is as
idle to go back to Gen. Halleck, or the old dictionaries or
treatises, for its present significancy, as it would be to go
back to Cicero for the laws of modern warfare.

If the evidence in this case shows that the accused en-
gaged in hostile acts which are forbidden by the law of war,
you may call him brigand or raider, t guerrilla or guerrillero,
prowler or robber, he is still amenable to this Court, what-
ever may have been said by writers of a former and less
civilized period. We do not go back to Cicero, nor even so far
as Pufendorf, Bynkershoeck, or Grotius, to discover pre-
cisely what is now the law of war. We may go back to our
Divine Master and His teachings in Judea, to discover the
pure fountains of that law of love which has now found its
way into the very code of war, and we may thence follow
downward to our own day the course of Christianity in its
influence upon Government, social institutions, and rules of
civil conduct, and at last discover what are to-day the rules
of civilized warfare. And in that code, as it now exists, we
shall learn that warriors are not allowed to lay aside their
uniforms, and the badges of their profession, to assume the
disguise of peaceful citizens, to creep insidiously into the
midst of peaceful and unsuspicious communities, and assas-
sinate leading individuals, set fire at night to crowded

744 XIV. AMERICAN STATE TRIALS.

theatres and hotels, or lay obstructions across railroads, and
hurl men, women, and children indiscriminately to destruc-
tion; and that for atrocities and infamous attempts of this
description, no command, no commission, no public mani-
festo, can be pleaded or proved in justification, extenuation,
or mitigation.

President Woolsey, in his Introduction to the Study of In-
ternational Laiv (2d Ed., p. 214) observes, that among the
rules which lie at the basis of a humane system of war, is the
rule that "war is waged between Governments by persons
whom they authorize, and is not waged against the passive
inhabitants of a country."

And, as he says, the reasons why "guerrilla parties do not
enjoy the full benefit of the laws of war, are, that they are
annoying and insidious, that they put on and off with ease
the character of a soldier, and that they are prone themselves
to treat their enemies who fall into their hands with great
severity. ' '

In the enunciation of these humane doctrines all the recent
text writers on public law are in harmony. But there is no
work in existence devoted specially to the subject of irregu-
lar warfare, except the little treatise of Dr. Lieber, from
which I have already quoted in speaking on the subject of
spies, and from which I beg leave now to read a few passages
that bear upon this second branch of the case on trial :

"There are cases in which the absence of a uniform may be taken
as very serious prima facie evidence against an armed prowler or
marauder." * * * "It makes a great difference whether the
absence of uniform is used for the purpose of concealment or dis-
guise in order to get by stealth within the lines jf the invader
for the destruction of life or property, or for pillage" — * * *
"nor can it be maintained in good faith, or with any respect for
sound sense and judgment, that an individual — an armed prowler
— shall be entitled to the protection of the laws of war — * * *
because his government or chief has issued a proclamation by which
he calls upon the people to infest the bushes and commit homicides
which every civilized nation will consider murders." (Pp. 16, 17.)
"The armed prowler is a simple assassin, and will thus always be
considered by soldiers and citizens." (P. 20.) "Armed bands that
rise in the rear of an army are universally considered, if captured,
brigands, and not prisoners of war. They unite the fourfold char-

JOHN Y. BEALL. 745

acter of the spy, the brigand, the assassin, and the rebel, and can-
not expect to be treated as a fair enemy of the regular war."
(Pp. 20, 21.) "No army, no society, engaged in war — * * *
can allow unpunished assassinations, robbery, and devastation, with-
out the deepest injury to itself, and disastrous consequences, which
might change the very issue of the war." (P. 22.)

I have received from Dr. Lieber, and now propose to read
as an authoritative exposition of the law which is to control
this part of the case, a letter addressed to myself, and bear-
ing date New York, February 5th, 1865:

"Dear Sir: There is no work which treats in a clear and full
manner like a law book, on spies, and so-called guerrillas, nor on
the law and usages of war in general. In no war previous to our
present one have these subjects received that minute and candid
attention which we give them, although this is a war of a lawful
government with insurgents. Nowhere have the spy and guerilla
been treated of more distinctly than in my pamphlet on 'Guerrilla
Parties,' which the Government printed, and of which I would send
you a copy had I one, and also of General Orders No. 100 (year
1863). I must say, however, that in my interleaved copy of this
order I have added to § 88 'Enemies found in disguise or concealed,
or lurking near the army, are by these facts deemed to be spies
except they can prove that they are prisoners of war in the act of
escaping?' I should certainly propose to add this were I consulted
as to a new edition. I ought also to have given something on
enemies toho in disguise come from the territory of a neutral to
commit robbery or murder, and those who may come from such ter-
ritory in uniform. I don't believe that such people, now called by
the unacceptable term raiders, have ever been treated of by any
writer. The thing created no doubt in the mind of any one. They
have always been treated as brigands, and it can easily be shown
upon principle that they cannot be treated otherwise. 'Never, so
long as men have warred with one another — and that is pretty
much as long as there have existed sufficient 'numbers to do so —
has any belligerent been insolent enough to claim the protection of
the laws of war for banditti who take passage on board a ves-
sel, and then rise upon the captain and crew, or who gather in the
territory of a friendly person, steal in disguise into the country of
their enemy, and there commit murder or robbery. The insolence
— I use the term now in a scientific meaning — the absurdity, and
reckless disregard of honor, which characterize this proceeding,
fairly stagger a jurist or a student of history. * * *

"Your obedient servant, Francis Lieber."

This, gentlemen of the Commission, is the voice of the law
speaking from the lips of the living jurist — of that learned

746 XIV- AMERICAN STATE TRIALS.

and eminent juris-consult whom our Government, in the
beginning of 1863, saw fit first to consult and then to employ
in drafting that manual of ' ' Instructions for the Government
of Armies of the United States in the Field," which, having
been " approved by the President," became the will of the
War Department, and was published as that "General Order
No. 100," from which I have already quoted in the course
of my argument.

With one reference to that order, from which I now read
paragraph 101, I will close my citation of the authorities
which determine the law applicable to the case now on trial :

"101. While deception in war is admitted as a just and neces-
sary means of hostility, and is consistent with honorable warfare,
the common law of war allows even capital punishment for clan-
destine or treacherous attempts to injure an enemy, because they
are so dangerous, and it is so difficult to guard against them."

Eeference was made by the counsel for the accused to the
trials in New York and Philadelphia, upon the charge of
piracy, of certain rebel privateersmen. Let me remind this
Court, that in those cases the civil judge, as a matter of law,
determined that the parties thus tried, though sheltered by a
rebel commission, were pirates. It was executive policy, and
not the law, which led to their exchange as prisoners of war.

The case of the steamer Caroline and the Canadian Mc-
Leod, to which Mr. Brady has alluded, can shed no light upon
the present trial. England and the United States were
friendly, not belligerent powers, and those border difficulties
were adjusted without recourse to the laws of war.

And now, Mr. President, I come to the final inquiry in this
most interesting and important trial. What are the facts
proved by the evidence under the 1st, 2d, and 6th Specifi-
cations of Charge 1st?

I submit to the Court that we have proved, 1st. That
the accused was and is a rebel officer. 2d. That he was
within our lines in disguise. 3d. That he, at Kelly's Is-
land, in Ohio, in September last, with the help of other rebel
officers and soldiers in disguise, seized the American private

JOHN Y. BE ALL. 747

steamboat Philo Parson. 4th. That he stole the money and
destroyed the freight on board of her. 5th. That in Sep-
tember, at Middle Bass Island, in Ohio, he, still in disguise,
and with the same friends in disguise, seized in like manner
another steamboat, the Island Queen, and scuttled and sunk
her. 6th. That in December he came from Canada to Buf-
falo, in New York, in disguise, and with other disguised rebel
officers and soldiers attempted unsuccessfully to throw a rail-
road train from the track. 7th. That he went back to
Canada, and again returned in the same treacherous manner
as before, and repeated his infamous attempt upon a night
train from Dunkirk, and was caught as he fled from the
scene of his unenviable exploits.

The evidence upon these points is not contradicted, and
admits of no denial or doubt. I respectfully submit to the
Court that the acts thus proved, having been done within our
lines by rebel enemies in disguise, upon the persons and
property of peaceable, unoffending, unsuspicious citizens, are
acts of irregular warfare — call them raiding, brigandage,
robbery, theft, piracy, plunder, murder, or assassination —
are offenses against the laws of God and the laws of man,
against municipal law and the laws of war, and may be tried
and punished by either municipal courts of civil jurisdiction,
by court-martial, or by military commission. They are
brought before you for trial. Yours is a rightful jurisdic-
tion. Upon you devolves the solemn duty of determining
the issues in this case, which, to the accused, are the dread
issues of life and death.

I have felt, Mr. President and gentlemen, oppressed, as I
know you all must feel, with the terrible responsibility im-
posed upon me, and upon you, by the facts and the law in
this case. But it is not a matter in which the dread of re-
sponsibility must be allowed to influence either your action
or mine. It is important that you and I, sir, and our wives
and children — that all of our fellow-citizens, may feel when
they enter a railroad car within the loyal States that they are
safe from all perils but those of ordinary travel ; and that if

748 XIV. AMERICAN STATE TRIALS.

any party of rebel soldiers in disguise, enemies of the Re-
public and friends of the Confederacy, attempt to place ob-
structions on the track, and throw off the train, they will be
punished with the most exemplary speed, certainty, and
severity. Enormities like this cannot be justified or screened
from legal vengeance by the plea or proof of a military com-
mission, command, or ratification, no matter how exalted may
be the rank of the commander; since the law of war, which
forbids and punishes the crime, is obligatory upon all.

It must have been apparent to you, gentlemen of the Com-
mission, that in the conduct of the defense the accused was
utterly embarrassed, perplexed, and at a loss to know how
to protect himself; and that he was compelled to resort to
two distinct, incongruous, and contradictory lines of defense :
at one time seeking to escape from the jurisdiction of this
Court by treating his acts as mere civil offenses; and at
another time claiming the protection of the laws of war as
a legitimate and regular belligerent, acting in obedience to
the lawful commands of his superior officers. Neither of
these lines of defense, I respectfully submit, can stand for
one moment against the charge and pressure of the law and
the facts.

The accused, knowing the terrible risk he assumed, know-
ing the peril under which he acted, entered upon a scheme
of illegal warfare upon the lake and upon the land. Some
one on board the captured steamers uttered the foolish as-
sertion, that with the stolen boats they meant to capture the
U. S. armed steamer Michigan. Every movement of those
captured boats proves the falsehood of that pretense. Not
one single mile, not a rod, not an inch, did either of those
vessels move under rebel direction toward the ship of war.

An act of lawful war! Seizing two passenger steamers,
robbing the clerk, throwing overboard the freight, committing
the crimes of pirates and of thieves, and not moving one
barley corn of distance toward what it pretended to be the
object and end of their warlike enterprise! Such a case
does not admit of argument.

JOHN Y. BEALL. 749

And so in regard to the defense of that scandalous attempt
upon the train — that it was a simple attempt at robbery,
and a mere civil offense, on the part of this "humane and con-
scientious" prisoner and his worthy associates, who with a
force of five men, armed with five revolvers, a sledge-ham-
mer, and a cold chisel, expected to capture a train of fifteen
cars and fifteen hundred passengers, and to plunder the
express-man's iron safe! It is a glaring absurdity. Why,
sir, the moment the train halted and they saw the approach
of three or four lanterns, this squad of express robbers
jumped into their sleigh and fled for the Canada border !

All the evidence in this case, may it please the Court, tends
to show that the accused was part and parcel of a wide-
spread scheme of unlawful and irregular warfare along our
whole Canadian line; whose purpose was, in any way and in
every way, except by open and honorable hostility, to en-
danger the lives, destroy the property, and weaken the
strength of those Yankee citizens whom these brigands of
the border so bitterly hate.

The piracy of the lake, and the outrage on the railroad,
were parts of that system of irregular warfare, under the
fear of which no man, woman, or child can sleep with any
feeling of security in our midst. Such atrocities are at-
tempts, on the part of the rebel officers and soldiers who
engage in and countenance them, to bring back war to its
old condition of barbarism — to imitate the stealthy cruelty of
the North American savage, who creeps under cover of mid-
night upon his unsuspecting victim, and smites him to death
ere the sound of approaching footsteps has aroused that
victim from slumber. With the accused this savage purpose
takes form in the robbery of steamboats and the destruction
of railroad trains and travellers. In other hands, it mani-
fests itself in midnight attempts to burn great cities. There
is nothing of Christian civilization, nothing of regular war-
fare, nothing of a high, noble, bold, manly, chivalrous char-
acter about it. It is an outbreak of passions so bad and
violent that they have overcome all the native elements of

750 XIV. AMERICAN STATE TRIALS.

manliness, and have led men, of whom four years ago to
have suspected of such things possible would have been a
calumny and a crime, to indulge in atrocities from month to
month and year to year, such as have not stained the pages
of warfare for two hundred years. And you sit here to-day,
and I stand here to-day, as the representatives of recognized
law and honorable warfare, to see that such outrages, when
they are clearly and distinctly brought home to the guilty
party by the evidence adduced upon the trial, shall not es-
cape unpunished.

THE VERDICT, SENTENCE AND EXECUTION.

February 8.

The Commission after a consideration of the evidence ad-
duced find as follows on the charges and specifications :

Of Specification 1, Charge I., Guilty.

Of Specification 2, Charge I., Guilty.

Of Specification 3, Charge I., Guilty.

Of Specification 4, Charge I., Guilty.

Of Specification 5, Charge I., Guilty.

Of Specification 6, Charge I., Guilty.

Of CHARGE I, Guilty.

On Specification 1, Charge II, Guilty.

On Specification 2, Charge B, Guilty.

On Specification 3, Charge B, Not guilty on the day alleged.

On CHARGE II, Guilty.

And the Commission do therefore sentence him, the said
John Y. Beall to be hanged by the neck until dead, at such
time and place as the General in command of the Depart-
ment may direct, two-thirds of the members concurring
therein.

Major General Dix affirmed the findings and sentence. After re-
viewing the evidence he said:

"In all the transactions with which he was implicated — in one
as a chief, and in the others as a subordinate agent — he was not
only acting the part of a spy, in procuring information to be used
for hostile purposes, but he was also committing acts condemned
by the common judgment and the common conscience of all civilized
States, except when done in open warfare by avowed enemies.
Throughout these transactions, he was not only in disguise, but
personating a false character. Is it not at all essential to the pur-

JOHN Y. BE ALL. 75

pose of sustaining the finding of the Commission, and yet it is not
inappropriate to state, as an indication of the animus of the ac-
cused and his condefedates, that the attempts to throw the railroad
train off the track were made at night, when the obstruction would
be less likely than in the daytime to be noticed by the engineer or
conductor, thus putting in peril the lives of hundreds of men,
women, and children. In these attempts three officers holding com-
missions in the military service of the insurgent States were con-
cerned. The accused is shown by the testimony to be a man of
education and refinement, and it is difficult to account for his
agency in transactions so abhorrent to the moral sense, and so in-
consistent with all the rules of honorable warfare.

"The accused, in justification of the transaction on Lake Erie,
produced the manifesto of Jefferson Davis, assuming the responsi-
bility of the act, and declaring that it was done by his authority.
It is hardly necessary to say that no such assumption can sanction
an act not warranted by the laws of civilized warfare. If Mr. Davis
were at the head of an independent government, recognized as such
by other nations, he would have no power to sanction what the
usages of civilized states have condemned. The Government of
the United States, from a desire to mitigate the asperities of war,
has given to the insurgents of the South the benefit of the rules
which govern sovereign States in the conduct of hostilities with
each other; and any violation of those rules should, for the sake
of good order here, and the cause of humanity throughout the
world, be visited with the severest penalty. War, under its mildest
aspects, is the heaviest calamity that can befall our race; and he
who, in a spirit of revenge, or with lawless violence, transcends the
limits to which it is restricted by the common behest of all Chris-
tian communities, should receive the punishment which the common
voice ha3 declared to be due to the crime. The Major General com-
manding feels that a want of firmness and inflexibility, on his part,
in executing the sentence of death in such a case, would be an of-
fense against the outraged civilization and humanity of the age.

Beall was hanged at Governor's Island, N. Y., on Friday,
February 24, 1865.

INDEX.

INDEX.

Alley, John, Jr.

Trial of, with Benjamin Shaw
for disturbing public wor-
ship, 658
Anthon, John

Counsel for prisoner in trial
of Henry B. Hagerman for
assault with intent to kill,
699
Arthur, Chester Alan, 69
Arson
Trial of Isaac Cotteral and
Peter Crannel for, 548
Assault

Trial of Henry B. Hagerman,
for, 599
Aull, William

Counsel for prisoners in trial
of Joseph Neet and others
for Sabbath breaking, 587
His speech to the jury, 591
Austin, James T.

Counsel for the Common-
wealth in the trials of Jo-
seph T. Buckingham for li-
bel, 507, 531

B

Babcock, Lewis L., 179
Ballard, Henry
Counsel for the prisoner in the
trial of John Ward for mur-
der, 556
Barker, Dr. Fordyce, 77
Base-ball
See Neet Trial, 583

Beall, John Y.

Trial of, for violation of the
rules of war and acting as a
spy, 683

The narrative, 683

Trial before a military com-
mission, 685

The President of the Commis-
sion, 685

The Judge Advocate, 686

The counsel for the prisoner,
686

The Charge, 687

The witnesses for the prosecu-
tion, 689

Letters of, 697

Diary of, 698

Proclamation of Jefferson Da-
vis, 701

Mr. Brady's argument for the
defense, 702

The Judge Advocate's address,
728

Opinions of Canadian Court,
730

The verdict and sentence, 750

Major General Dix affirms ver-
dict and sentence, 750

The execution, 751
Bell, James L.

Trial of, with Buggies Hub-
bard, for preventing attor-
ney from entering jail to see
client, 299
Bibliography

Of Guiteau Trial (murder),
6

(755)

756

XIV. AMERICAN STATE TRIALS.

Of Czolgosz Trial (murder),

164
Of Bird Trial (piracy), 232
Of Kenniston Trial (robbery),

240
Of Garrison Trial (libel), 292
Of Lusk Trial (murder), 318
Of Ward Trial (murder), 555
Of Neet Trial (Sabbath break-
ing), 584
Of Hicks Trial (piracy), 626
Of Shaw Trial (riot), 658
Of Beall Trial (as a spy), 685
Bird, Thomas, and Hans Han-
sen
Trial of, for Piracy and Mur-
der, 232

The narrative, 232

The Judge, 232

The indictment, 233

The evidence, 233

The counsel on both sides, 233

The verdict, 236

Arrest of Judgment overruled,

236
Petition for Pardon refused,
236
Blackwell, John S.
Counsel for prisoners in trial
of Joseph Neet and others
for Sabbath breaking, 587
Blaine, James Gillespie

Secretary of State, accompa-
nies President Garfield to
railroad station, 1
Witness for prosecution in
trial of Charles J. Guiteau
for murder, 20
Blake, Francis A.
Counsel for prisoner in trial
of James Dalton for False
Pretense, 493
His argument, 494

Bogardus, Robert

Counsel for the prisoner in
trial of Henry B. Hagerman,
for assault with intent to
kill, 600
Bolles, John A.

Judge Advocate in military
trial of John Y. Beall for
violation of the rules of war
and acting as a spy, 686
Brady, James T.

Counsel for the prisoner in the
military trial of John Y.
Beall for acting as a spy and
violating the rules of war,
686

His argument, 702
Brice, Nicholas

Judge in the trial of William
Lloyd Garrison for libel,
292
Buckingham, Joseph T.

Trial of, for libel, 505

The narrative, 505

The indictment, 506

The Judge, 506

The counsel for the Common-
wealth, 507

The counsel for the defend-
ant, 507

The witnesses for the prosecu-
tion, 510

The witnesses for the defense,
513

Mr. Knapp, for the defense,
512

Mr. Gorham, for the defense,
514

Mr. Austin, for the Common-
wealth, 516

Judge Thacher's speech to the
jury, 516

The verdict and sentence, 528

The appeal to the Supreme
Judicial Court, 529

INDEX.

757

Second Trial of, for libel, 530

The narrative, 530

The Judge, 531

The counsel on both sides, 531

The witnesses for the Com-
monwealth, 533

The witnesses for the defense,
535

Mr. Knapp for the defense,
534

The Judge's charge to the
jury, 541

The verdict and sentence, 547
Buffam, Jonathan

Trial of, with Benjamin Shaw,
for disturbance of public
worship, 658

Clancey, James M.
Counsel for the prisoner in
trial of Grace A. Lusk for
murder, 319
His speech to the jury, 410
Colby, Saffobd

Judge in trial of John Ward
for murder, 555

COLDEN, CADWALLADEB D.

Mayor of New York and Judge
in trial of Henry B. Hager-
man for assault with intent
to kill, 600

His charge to the jury, 615
Coleman, William

Plaintiff in trial of Henry B.
Hagerman for assault with
intent to kill, 599
Confessions

See Hicks Trial, 648

See Ward Trial, 574

CONKLING, ROSCOE

U. S. Senator, 22

COBKHILL, GEOBGE BAKEB

District Attorney in trial of
Charles J. Guiteau for mur-
der of President Garfield,
7

His opening speech in trial of
Charles J. Guiteau, 12

COBBIGAN, WALTEB D.

Attorney for the State in trial
of Grace A. Lusk for mur-
der, 319

His opening speech, 320

His speech to the jury, 446
Coetelyou, Geobge Bbuce, 159
Cottebal, Isaac

Trial of, for arson, 548

The narrative, 548

The indictment, 549

The judges, 549

The counsel on both sides, 549

The evidence, 549

The speech of the Chief Jus-
tice, 552

The verdict and sentence, 552
Cbannel, Peteb

Trial of, with Isaac Cotteral
for arson, 548
Cox, Walteb S.

Judge in trial of Charles J.
Guiteau for the murder of

President Garfield, 6, 7

His charge to the jury, 137
Cummins, David

Counsel for the prisoners in
the trial of Benjamin Shaw
and others for disturbance
of public worship, 659

His speech to the jury, 674
Czolgosz, Leon F.

Trial of, for the murder of
President McKinley, 159

The narrative, 159

The Judge, 164

The indictment, 164

The counsel on both sides, 168

758

XIV. AMERICAN STATE TRIALS.

The witnesses for the People,
172

Temple of Music — plan of, 181

Report of experts for the Peo-
ple, 195

Report of experts for the Pris-
oner, 196

The speeches to the jury, 204,
215

Judge White's charge to the
jury, 219

The verdict and sentence, 227

The Execution, 229

Dalton, James

Trial of, for false pretense, 492

The narrative, 492

The indictment, 493

The evidence, 493

The Judge, 493

The counsel on both sides, 493

The verdict of guilty, 494

Mr. Blake's argument for the
prisoner, 494

The Recorder's order for a

new trial, 504
Davidge, Walter Dorsey

Counsel for state in trial of
Charles J. Guiteau for mur-
der of President Garfield,
7, 8

His speech to the jury, 103
Davis, Daniel

Solicitor General in the trial
of Levi and Laban Kennis-
ton for robbery, 240

His opening speech, 241

His speech to the jury, 281
Davis, David, 65
Day, James R.

Chancellor of Syracuse Uni-
versity, Letter from, to
Judge Lewis, 213

Disturbance of Public Worship
Trial of Benjamin Shaw and
others for, 657
Dwight, James F.
Counsel for the prosecution in
the trial of Albert W. Hicks
for piracy, 628
His opening speech, 628

E

Emery, Edward K.
Judge of County Court in trial
of Leon F. Czolgosz for mur-
der of President McKinley,
164
Englesby, L. B.

State's Attorney in trial of
John Ward for murder, 556
Eusthaphieve, Alexis

Russian Consul, plaintiff in
the trial of Joseph T. Buck-
ingham for libel, 505
Evarts, Hon. William M.

Secretary of State; Letter
from Charles J. Guiteau, to, 15

F

False Pretense

Trial of James Dalton, for, 492
Farwell, Charles B., 9, 69
French, Jeremiah

Counsel for the prisoner in the
trial of John Ward for mur-
der, 556

G

Garfteld, James Abram

Trial of Charles J. Guiteau for

the murder of, 1
Garrison, William Lloyd

Trial of, for libel, 291

The narrative, 291

INDEX.

759

The indictment, 292

The Judge, 292

The counsel on both sides, 293

The witnesses for the State,

295
The witnesses for the defense,

296
Mr. Mitchell's argument for

the prisoner, 296
Mr. Gill for the State, 297
Judge Brice's charge to the

jury, 298
The verdict and sentence, 298
Motion for new trial over-
ruled, 299
Gill, R. W.

Counsel for the State in the
trial of William Lloyd Gar-
rison for libel, 293
Goodrich, Elijah Putnam

Plaintiff in Kenniston trial,
240
Gore, Christopher

U. S. Attorney, in trial of
Thomas Bird for piracy and
murder, 233
Gorham, Benjamin

Counsel in the trials of Joseph
T. Buckingham for libel,
507, 531
His speeches to the jury, 514,
539
Graves, Henry B.

Counsel in the trial of Albert
W. Hicks for piracy, 628
Griffin, Ebenezer

Counsel for prisoners in trial
of Isaac Cotteral and Peter
Crannel for arson, 549
Gutteau, Charles Julius

Trial of, for the murder of
President James A. Garfield,
1
The narrative, 1

The indictment, 6

The Judge, 6

The counsel on both sides, 7

The jury, 11

Mr. CorkhilFs opening, 12

Letters of, 15-17; 21-22; 28-33

The witnesses for the prosecu-
tion, 20

Mr. Scoville's opening speech
for the defense, 37

The witnesses for the defense,
44, 65

His testimony, 52

The cross-examination by Mr.
Porter, 59

The witnesses for the prosecu-
tion, in rebuttal, 70

The defense again, 74

His "Address to the American
People", 81

The Court's instructions to the
jury, 101

Mr. Davidge's speech to the
jury for the prosecution, 103

Mr. Reed's speech to the jury
for the prisoner, 105

Mr. Scoville's speech to the
jury for the prisoner, 107

His address to the jury, 111

Mr. Porter's speech to the jury
for the prosecution, 114

Judge Cox's charge to the jury,
137

The verdict of guilty, 152

Application for new trial over-
ruled, 152

The sentence of death, 154

The execution, 155

H

Hagerman, Henrt B.

Trial of, for assault, with in-
tent to kill, upon William
Coleman, 599

760

XIV. AMERICAN STATE TRIALS.

The narrative, 599

The Judge, 599

The indictment, 599

The counsel on both sides, 600

Mr. Price's opening for the

People, 601
The witnesses for the People,

602
Mr. Anthon for the defense,

607
Witnesses in rebuttal, 609
The defense again, 611
Mr. Van Wyck for the defense,

614
Mr. Price for the People, 614
The Judge's speech, 615
The verdict, of guilty of as-
sault and battery but not

with intent to kill, 621
The sentence, 624
The damages, 624
Haller, Frederick
Assistant District Attorney in

trial of Leon F. Czolgosz for

murder, 168
His speech to the jury, 170
Hamilton, Dr. Allan McLane
Expert in trial of Charles J.

Guiteau for murder, 84
Hancock, Gen. Winfield Scott,

3, 7
Hansen, Hans
Prisoner with Thomas Bird in

trial for piracy and murder,

232
Hard, E. R.

Counsel for the State in trial

of John Ward for murder,

556
Harrison, Benjamin, 72, 73
Hicks, Albert W.
Trial of, for piracy, 625
The narrative, 625
The indictment, 626
The Judge, 626

The counsel on both sides, 628

Mr. Dwight's opening for the
prosecution, 628

The jury, 628

The witnesses, 637

The speeches to the jury, 644

The Judge's charge, 648

The verdict and sentence, 648

The confession of the pris-
oner, 648

The execution, 652
Howe, Samuel

Judge in the trial of Benjamin
Shaw and others for dis-
turbance of public worship,
659

His charge to the jury, 677
Hubbard, Ruggles and James L.

Bell

Trial of, for preventing attor-
ney from entering jail to see
a client, 299

The narrative, 299

The Judge, 300

The counsel on both sides, 300

The evidence, 301

Argument for the defense, 302

Mr. Sampson's argument, 303

The Judge's speech, 303

The Court's order, 314
Hunt, Charles H.

Counsel for the prosecution in
the trial of Albert W. Hicks
for piracy, 628
Indictments

Of Bird, Thomas (piracy and
murder), 233

Of Buckingham, Joseph T. (li-
bel), 506

Of Cotteral, Isaac (arson), 549

Of Czolgosz, Leon F. (mur-
der), 164

Of Dalton, James (false pre-
tense), 493

INDEX.

761

Of Garrison, William Lloyd
(libel), 292

Of Guiteau, Charles J. (mur-
der), 6

Of Hagerman, Henry B. (as-
sault), 600

Of Hicks, Albert W. (murder
and piracy), 626

Of Kenniston, Levi and Laban
(robbery), 240

Of Lusk, Grace A. (murder),
318

Of Neet, Joseph (Sabbath
breaking), 584

Of Shaw, Benjamin (disturb-
ance of public worship), 658

Of Ward, John (murder), 556
Insanity

As a defense to murder:
In Guiteau trial, 1
In Czolgosz trial, 159
In Lusk trial, 316

Jennings, Thomas

Counsel for the State in the
trial of William Lloyd Gar-
rison for libel, 293

Judges

Bolles, Major John A., 686
Brice, Nicholas, 292
Colby, Safford, 555
Colden, Cadwallader D. (May-
or), 600
Cox, Walter S., 6, 7
Emery, Edward K., 164
Howe, Samuel, 658
Lowell, John, 232
Lueck, Martin L., 318
Pierpont, John, 555
Putnam, Samuel, 240
Reynolds, William V., 555
Rich, John A., 585
Riker, Richard, 300, 493

Smalley, David A., 626
Spencer, Ambrose, 548
Thacher, Peter O., 506, 531
Van Ness, William W., 548
Warren, Brig. Gen. Fitz

Henry, 685
White, Truman C, 164

K

Kenniston, Levi and Laban

Trial of, for robbery, 237

The narrative, 237

The indictment, 240

The Judge, 240

The counsel on both sides, 240,
241

The jury, 241

Mr. Davis' opening, 241

The witnesses for the Com-
monwealth, 242
'Mr. Knapp's opening speech
for the defense, 248

The witnesses for the defense,
256

The witnesses for the Com-
monwealth again, 260

Mr. Webster's speech for the
prisoners, 262

Mr. Davis' speech to the jury,
281

Judge Putnam's charge to the
jury, 289

The verdict, 290

Action against Major Good-
ridge for false arrest, 290
King, John

Counsel for defense in trial of
Ruggles Hubbard and James
L. Bell for preventing attor-
ney from entering jail to
see client, 300
Knapp, Samuel L.

Counsel for defense in the
trials of Joseph T. Bucking-

762

XIV. AMERICAN STATE TRIALS.

ham for libel, 507, 531
His speech to the jury, 512,

534
Knapp, Stephen

Counsel for prisoners in the

trial of Levi and Laban

Kenniston for robbery, 241
His opening speech, 248

Lawyers

Anthon, John, 600
Aull, William, 587
Austin, James T., 531
Ballard, Henry, 556
Blackwell, John S., 587
Blake, Francis A., 493
Bogardus, Robert, 600
Brady, James T., 686
Clancy, James M., 319
Corkhill, George B., 7
Corrigan, Walter D., 319
Cummins, David, 659
Davidge, Walter D., 7
Davis, Daniel, 240
Dwight, James F., 628
Englesby, L. B., 556
French, Jeremiah, 556
Gill, R. W„ 293
Gore, Christopher, 233
Gorham, Benjamin, 531
Graves, Henry B., 628
Griffin, Ebenezer, 549, 600
Haller, Frederick, 168
Hard, E. R., 556
Hunt, Charles H., 628
Jennings, Thomas, 293
King, John, 300
Knapp, Samuel, 531
Knapp, Stephen, 241
Lewis, Loran Ludowick, 168
Lockney, Henry, 319
Lowry, James K., 319
Maxwell, Hugh, 493

Lawyers — Continued

McManus, William, 549

Meredith, Jonathan, 293

Merrill, James C, 659

Mitchell, Charles, 293

Munro, Peter J., 600

Oakley, Thomas J., 549

Penny, Thomas, 168

Pickering, John, 659

Porter, John K., 7

Price, John M., 587

Price, W. M., 600

Ratcliff, P. W., 300

Reed, Charles H., 8

Roberts, Daniel, 556

Robinson, Leigh, 8

Roosevelt, James J., 628

Saltonstal, Leverett, 659

Sampson, William, 300

Sayles, George W., 628

Scoville, George, 8

Syms, Mr., 233

Titus, Robert Cyrus, 168

Tullar, Dell S., 319

Van Wyck, Pierre C, 600

Vivion, Clarence, 586

Webster, Daniel, 241

Wells, John, 549
Lewis, Loran Ludowick

Counsel for prisoner in trial
of Leon F. Czolgosz for mur-
der of President McKinley,
168

Letters to, 205

His speech to the jury, 204

Libel

Trial of William Lloyd Garri-
son for, 291

Trials of Joseph T. Bucking-
ham for, 505, 530

Lockney, Henry
Counsel for the prisoner in
trial of Grace A. Lusk for
murder, 319

INDEX.

763

His speech to the jury, 369
Logan, John Alexander
U. S. Senator
Witness for defense in trial of

Charles J. Guiteau for mur-
der, 47
Lowell, John

Judge in trial of Thomas Bird

for piracy and murder, 233
Lowry, James K.

Counsel for the prisoner in

trial of Grace A. Lusk for

murder, 319
Lueck, Martin L.

Judge, in trial of Grace A.

Lusk for murder, 318
His charge to the jury, 484
Ltt.sk, Grace A.
Trial of, for the murder of

Mary Newman Roberts, 316
The narrative, 316
The indictment, 318
The Judge, 318

The counsel on both sides, 319
The jury, 319

Mr. Corrigan's opening, 320
The witnesses for the State,

322
The witnesses for the defense,

340
Her statement, 343
Cross-examination by Mr. Cor-

rigan, 351
The witnesses for the prosecu-
tion in rebuttal, 355
Mr. Tullar's speech to the

jury, 356
Mr. Lockney for the Prisoner,

369
Mr. Clancy for the Prisoner,

400
Mr. Corrigan for the State, 446
The Judge's charge, 484
The verdict and sentence, 490

Her attack upon the Circuit
Attorney, 491

Commission appointed to ex-
amine upon the sanity of,
491

Motion for a new trial denied,
491

M

Maxwell, Hugh

Counsel for the People in trial
of James Dalton for false
pretense, 493
McConlogue, J. H.
President of Iowa State Bar

Association
Letter from, to Judge Lewis,
214
McDonald, Dr. A. E.

Expert in trial of Charles J.
Guiteau for murder, 92
McKinley. William

Biographical sketch of, 159
McManus, William

Counsel for People in trial of
Isaac Cotteral and Peter
Crannel for arson, 549
Merrill, James C.

Counsel for the Common-
wealth in the trial of Benja-
min Shaw and others for
disturbance of public wor-
ship, 659
His opening speech, 660
Meredith, Jonathan

Counsel for the State in the
trial of William Lloyd Gar-
rison for libel, 293
Milbtjrn, John George, 159

Mitchell, Charles

Counsel for the prisoner in the
trial of William Lloyd Gar-
rison for libel, 293

764

XIV. AMERICAN STATE TRIALS.

Moot, Adelbert, 163

Letter from, to Judge Lewis,

213
Munro, Peter J.
Counsel for prisoner in trial

of Henry B. Hagerman for

assault with intent to kill,

600
Murder
Trial of Charles J. Guiteau

for, 1
Trial of Leon F. Czolgosz for,

159
Trial of Thomas Bird and

Hans Hansen for, 232
Trial of Grace A. Lusk for,

316
Trial of John Ward for, 556
Trial of Albert W. Hicks for,

625

N

Neet, Joseph

Trial of, for Sabbath breaking,
583

The narrative, 583

The indictment, 584

The Judge, 584

The Counsel on both sides, 586

The jury, 587

The witnesses, 587

The Judge's charge, 591

Mr. Aull's speech for the de-
fense, 591

The Prosecuting Attorney's
speech, 593

The verdict

Appeal to Supreme Court, 598

Oakley, Thomas J.
Counsel for People in trial of
Isaac Cotteral and Peter
Crannel for arson, 549

Penny, Thomas

District Attorney in trial of
Leon F. Czolgosz for mur-
der, 168

His speech to the jury, 214
Pickering, John

Counsel for the Common-
wealth in the trial of Benja-
min Shaw and others for
disturbance of public wor-
ship, 659
Pierpont, John

Chief Justice in trial of John
Ward for murder, 555

His charge to the jury, 571
Piracy

See trial of Albert W. Hicks
for, 625

See trial of Thomas Bird and
Hans Hansen for, 232
Porter, John Kilham

Counsel for State in trial of
Charles J. Guiteau for mur-
der, 7, 8

His speech for the prosecution,
114
Price, John M.

Counsel for prisoners in trial
of Joseph Neet and others
for Sabbath breaking, 587
Price, W. M.

Counsel for the People in trial
of Henry B. Hagerman for
assult with intent to kill,
600

His opening speech, 601
Putnam, Samuel

Judge in the trial of Levi and
Laban Kenniston for rob-
bery, 240

Extract from his charge to the
jury, 289

INDEX.

765

Q

Quakers

See trial of Shaw and others,
658

R

Ratcliff, P. W.

Counsel for defense in trial of
Ruggles Hubbard and James
L. Bell for preventing attor-
ney from entering jail to see
client, 300
Reed, Charles Harvey

Counsel for prisoner in trial
of Charles J. Guiteau for
murder, 8
Witness for prisoner, 46
His speech for prisoner, 105
Reynolds, William V.
Judge in trial of John Ward
for murder, 555
Rich, John A.

Judge in trial of Joseph Neet
and others for Sabbath
breaking, 585
Riker, Richard
Judge in trial of Ruggles Hub-
bard and James L. Bell, for
preventing attorney from en-
tering jail to see client, 300
Judge in trial of James Dalton
for false pretense, 493
Riot

See Shaw trial, 657
Robbery

See trial of Levi and Laban
Kenniston for, 237
Roberts, Daniel
Counsel for the prisoner in
trial of John Ward for mur-
der, 556
Robinson, Leigh
Counsel for prisoner in trial
of Charles J. Guiteau for
murder, 8, 9

Honorable discharge granted,
36
Roosevelt, James J.

District Attorney in the trial
of Albert W. Hicks for pi-
racy, 628
Root, Elihu H.

Secretary of War

Letter from, to Governor of
New York, 213

Sabbath Breaking
Trial of Joseph Neet and

others for, 583
Saltonstal, Leverett
Counsel for the prisoners in

the trial of Benjamin Shaw

and others for disturbance

of public worship, 659
Sampson, John
Counsel for prisoners in trial

of Ruggles Hubbard and

James L. Bell for preventing

attorney from entering jail

to see client, 300
Sayles, George W.
Counsel in the trial of Albert

W. Hicks for piracy, 628
Scoville, George W.
Counsel for prisoner in trial

of Charles J. Guiteau for

murder, 8
His opening speech to the

jury, 37
His speech for prisoner, 107
Shaw, Benjamin
Trial of, for disturbance of

public worship, and riot, 657
The narrative, 657
The Judge, 658
The indictment, 658
The counsel on both sides, 659
The jury, 660

766

XIV. AMERICAN STATE TRIALS.

Mr. Merrill's opening, 660
Witnesses for the Common-

monwealth, 666
Rules of discipline, 667
Mr. Cummins for the prison-
oners, 674
Witnesses for the prisoners,

676
Judge Howe's charge to the

jury, 677
The verdict and sentence, 681
The fine, 682
Sherman, Gen. W. T., 70
Sherwood, Thomas Adiel
Chief Justice of the Supreme
Court of Missouri, in appeal
of Joseph Neet for Sabbath
breaking, 598
Sm alley, David A.
Judge in the trial of Albert W.
Hicks for piracy, 626
Spencer, Ambrose
Chief Justice in trial of Isaac
Cotteral and Peter Crannel
for arson, 548
Spitzka, Dr. Edward A., 203
Sprague, Preserved
Defendant with Benjamin
Shaw in the trial for dis-
turbance of public worship,
658
Storrs, Emery Alexander, 65
Syms, Mr.
Counsel for prisoners in trial
of Thomas Bird and Hans
Hansen for piracy and mur-
der, 233

Temple of Music

Plan of, at Pan-American Ex-
position, 181
Thacher, Peter 0.

Judge in the trials of Joseph

T. Buckingham for libel,

506, 531
His charges to the jury, 516,

541
Titus, Robert Cyrus

Counsel for prisoner in trial

of Leon F. Czolgosz for mur-
der, 168
Letter to, from "Committee of

100," 205
His speech, 212
Tullar, Dell S.
Assistant District Attorney in

trial of Grace A. Lusk for

murder, 319
His speech to the jury, 356

Van Ness, William W.

Judge in trial of Isaac Cot-
teral and Peter Crannel for
arson, 548
Van Wyck, Pierre C.

Counsel for the prisoner in
trial of Henry B. Hagerman
for assault with intent to
kill, 600
VrvroN, Clarence

Prosecuting Attorney in trial
of Joseph Neet and others
for Sabbath breaking, 586
His speech to the jury, 593

W

Ward, John

Trial of, for the murder of
Mrs. Ephriam Griswold, 553
The narrative, 553
The Judges, 555
The indictment, 556
The counsel on both sides, 556
The jury, 556
Mr. Englesby's opening, 556

INDEX.

767

The witnesses for the State,
557

The testimony for the de-
fense, 569

The witnesses in rebuttal, 570

The Judge's charge, 571

The verdict and sentence, 573

The prisoner's confession, 574

The execution, 581
Warren, Brig. Gen. Fitz Henry

President of the commission

which tried John Y. Beall

for violation of the rules of

war and acting as a spy, 685

Webster, Daniel

Counsel for prisoners in the
trial of Levi and Laban Ken-
niston for robbery, 241

His speech to the jury, 262
Wells, John

Counsel for prisoners in trial
of Isaac Cotterai and Peter
Crannel, for arson, 549
White, Truman C.

Judge in trial of Leon F.
Czolgosz for murder of Pres-
ident McKinley, 164

His charge to the jury, 219
Witnesses

Adams, George W., 24

Alexander, Thompson H., 27

Alkins, Smith D., 70

Alsfeldt, Francis, 609

Alvord, Grace, 341

Amerling, H. B., 47

Anderson, Mary, 342

Andrews, Byron, 27

Arnold, Thomas, 676

Ashley, Walter O., 689

Atkins, Warren, 562

Babcock, Lewis L., 179

Babcock, Anson A., 70

Bacon, James H., 638

Baldwin, Curtis E., 559

Baldwin, David S., 638

Witnesses — Continued.
Baker, Charles, 638
Balch, Dr. Israel, 257
Ballard, Henry, 566
Barker, Dr. Fordyce, 77
Barksdale, Dr. Randolph, 93
Barnes, Dr. Joseph K., 36
Barrows, George T., 49
Bartlett, Florence L., 70
Bartlett, Frank, 70
Barton, Aquilla, 27
Barton, Edward P., 70
Barton, H. N., 44
Bassett, Isaac, 667
Beard, Dr. George M., 100
Becker, Dr. William F., 355
Beekman, Dr. Stephen D., 609
Berry, Dr. Fred H., 342
Bertschey, Louis, 189
Blaine, James G., 20
Bliss, Dr. D. W., 34
Bliss, Harry A., 172
Blodgett, Elizabeth, 334
Blood, Francis A., 341
Blott, L. D., 322
Bowman, Elliott W., 562
Boyle, John A., 637
Branch, John, 191
Breed, Samuel, 671
Breed, William B., 677
Brockway, Dr. Arthur A., 343
Brooks, James J., 101
Brown, Captain, 295
Brown, Obadiah, 671
Brown, Warren C, 72
Brown, J. Stanley, 28
Brown, Sevillon A., 27
Brownell, Chauncey W., 560
Bryan, Charles A., 79
Buckley, Benjamin T., 70
Bull, William S., 192
Burdett, Theodore, 642
Burke, Catherine, 640
Burke, Patrick, 640
Burkhart, Joseph U., 34'

768

XIV. AMERICAN STATE TRIALS.

Witnesses — Continued.
Burr, Dideme, 643
Caldwell, Samuel R., 248
Caldwell, W. S., 70
Call, Edward, 558
Callendar, Dr. John H., 93
Calmerton, Evalyn, 341
Camacho, Simon, 23
Campbell, William B., 341
Carter, Dr. Moses, 256
Channing, Dr. Walter, 68
Chapman, David, 259
Charles, Harry, 560
Chase, Philip, 673
Cheever, Walter H., 341
Church, Carrie, 341
Clark, George, 587
Clark, Jefferson, 510
Clough, Josiah, 677
Coburn, John, 261
Cochran, J. S., 70
Coe, Robert, 341
Coffin, Daniel, 247
Coffin, William, 511
Coleman, William, 602
Collins, May, 335
Collins, Micajah, 674
Collyer, Henry M., 79
Conover, Samuel J., 642
Conrad, Ephriam, 614
Coolidge, Cornelius, 535
Cornell, John, 611
Cowell, Selah, 637
Crawford, William S., 26
Currier, L. C, 340
Damon, Norwood, 45
Daniels, Edward A., 65
Darlington, Thomas, 72
Davis, David, 65
Davis, Hiram H., 44
Davis, Joshua A., 26
Davis, Dr. Richard E., 323
Dawes, William B., 343
Denister, Alexander, 611
Desboues, Joseph, 611

Witnesses — Continued.
Devereux, Agnes, 343
Deaver, E. K., 295
Dickenson, Catherine, 643
Dimon, Dr. Theodore, 87
Dodd, John, 514
Dodge, William, 611
Dorr, Edward, 260
Downes, Samuel, 641
Drumm, William, 640
DuBorry, Edmond L., 26
Dunmire, Mrs. Anna, 83
Durell, Captain, 260
Durnin, Michael, 639
Dyer, William, 234
Eckhoff, Adolphus, 28
Edwards, Avery B., 570
Edwards, William A., 89
Eldridge, Richard, 639
Ellery, John S., 510
English, Stephen, 72
Estburg, E. R., 338
Evans, Dr. T. W., 341
Farwell, Charles B., 68
Ferris, Benjamin, 612
Fields, Samuel J., 172
Fisher, Dr. Theodore W., 68
Fish, Hiram B., 562
Flanagan, Noble B., 565
Folsom, Dr. Charles, 68
Foss, E. O., 46
Foster, George F., 188
Francis, Dr. John W., 610
Fraser, Cameron W., 341
Fraser, Mrs. C. W., 341
French, William H., 563
French, Zadock, 262
Frothingham, E., 513
Fulkerson, John A., 589
Gale, William, 262
Gaylord, Harvey R., 172
Garland, Mr., 262
Gillette, Walter R., 73
Golding, Dr. William W., 68
Good, James, 590

INDEX.

769

Witnesses — Continued
Goodridge, Elija P., 242
Gorham, George C, 69
Grant, Mrs. Ella C, 83
Gray, Dr. John P., 99
Gratz, Isa, 589
Green, Dr. Rowland, 670
Greene, A. T., 70
Griswold, Ephriani, 560
Groesbeck, Abraham, 612
Gumbold, Augustus, 609
Guisler, Augustus, 639
Guiteau, John W., 49
Hagood, George, 591
Haight, Benjamin, 604
Hale, Mrs. Jane, 341
Hamilton, Dr. Allan McLane,

84
Hammelin, William, 493
Hanan, Herbert H., 341
Harkness, Dr. Grove, 355
Harrison, Benjamin, 73
Harrison, James, 259, 262
Haviland, Gilbert, 607
Hawes, Granville P., 72
Hawkins, Franklin E., 639
Hawks, David, 673
Hayes, Jacob, 611
Hayes, Patrick, 570
Hays, Edward, 694
Hazeltine, Dr., 675
Heinrici, Charles F., 341
Henika, Louia, 342
Henshaw, Harry F., 190
Hickbert, Abraham S., 639
Hinton, Richard J., 67
Hintze, Walter, 341
Hosack, Dr. David, 606
Houghton, Abel, 676
Howard, Stephen, 262
Hubbard, Abbey, 643
Hubbard, George B., 48
Huther, John, 611
Ireland, William H., 611
Jackman, John, 258

Witnesses — Continued
Jackson, James, 236
Jacobson, August, 342
James, Albert S., 640
James, John, 611
Jocelyn, Charles S., 49
Jones, Abbie, 343
Jones, Fernando, 51
Jones, William, 261
Jordan, Robert, 233
Jordan, Walter, 233
Justice, T. M., 79
Kelly, George W., 564
Kelly, Patrick, 26
Kempster, Dr. Walter, 97
Kenniston, Aaron, 259
Keymer, Reuben, 638
Keyser, Erick E., 338
Kiernan, James P., 66
Kimball, Paul S., 338
Kimball, Stephen, 26
Kip, Isaac, 611
Klinger, Augusta, 343
Lamb, Dr. D. S., 36
Lang, Edgar, 610
Lawrence, David, 259
Leavitt, Major Samuel T., 246
Lloyd, Isaac F., 73
Lockwood, Mary S., 45
Logan, John A., 47
Loncke, Louis, 563
Loomis, C. F., 342
Loring, Dr. Francis D., 84
Love, Dr. George F., 355
Lucas, James, 296
Lull, Myrtle E., 342
Lusk, Dr. A. P., 354
MacArthur, Rev. R. S., 71
Main, E. D., 343
Mann, Dr. Matthew D., 176
Martin, Mrs. Ann, 259
Martyne, Simon, 610
Maynard, George C, 33, 70
McBride, Dr. James H., 68
McCaffrey, Patrick, 640

770

XIV. AMERICAN STATE TRIALS.

Witnesses — Continued

McClelan, William W., 301
McCullough, D.? 296
McDonald, Dr. A. E., 92
McElfresh, George W., 100
McKay, Don C, 326
McNeil, Dr. Alexander W., 65
McNeven, Dr. William J., 611
Melick, Balthazar, 610
Merrill, Andrew Jackson, 568
Minns, Thomas, 514
Morris, Albert L., 337
Morse, Ezekiel, 510
Morss, Rev. James, 258
Moss, John A., 48
Munson, William B., 567
Murphy, John, 611
Murphy, Dr. William T., 326
Mynter, Dr. Herman, 173
Neff, Louis, 189
Neidlinger, George, 639
Nelson, Dr. John, 611
Neumann, Mrs. Gretha, 335
Nichols, Dr. Charles H.( 67
Nichols, Ichabod, 673
Nivens, George, 641
North, Thomas, 47
O'Brien, Francis P., 189
O'Brien, Warren, 322
O'Connor, Richard, 641
Oiler, George W., 70
Olds, George W., 45
O'Malley, Margaret, 343
O'Meara, John, 34
Osgood, Dr. George, 262
Owen, Dr. Edward B., 341
Palmer, John, 71
Parke, Robert A., 24
Parker, John, 262, 614
Parker, Mrs. Sarah W., 51
Pascalis, Dr. Felix, 609
Pease, Edward H., 567
Pease, Rollin, 566
Pearson, Ebenezer, 258
Pearson, Thomas, 260

Witnesses — Continued

Peterson, Dr. George E., 355

Philbrick, Samuel, 676

Phelps, Simon D., 78

Pike, John, 248

Plummer, George W., 72

Potter, Electa, 569

Potter, John A., 569

Potter, Jackson, 569

Potter, Katy, 569

Potter, William, 246

Powers, Dr. Herbert W., 354

Pratt, Joseph W., 563

Pratt, Micajah Collins, 673

Purington, James, 673

Quackenbush, James L., 183

Raymond, Charles H., 73

Reed, Charles H., 46

Redford, Alvin J., 335

Redmond, John, 562

Rex, Charles, 588

Reynolds, Gen. Joseph S., 80

Rhodes, H. C, 342

Rice, John A., 44

Ridgley, Ella M., 25

Roberts, Dr. David, 327, 355

Robinson, Harriet, 643
" Rockwell, Col. A. S., 34

Rogers, David, 610

Schaeffel, John, 338

Schaeffer, Maud, 341

Schlaefer, S. P., 341

Schultz, A. H., 340

Scott, John A., 26

Scoville, Mrs., 48

Seaman, Henry, 642

Sharp, Joseph K., 25

Shaw, D. McLean, 73

Shaw, Major Samuel, 258

Sherman, W. T., 70

Shippen, Rev. Rush R., 79

Shove, Squiers, 672

Silsbee, Daniel, 671

Simmons, Daniel, 637

Simpson, Joseph P., 611

INDEX.

771

Witnesses — Continued

Smith, Mrs. Catherine, 342
Smith, Edmund M., 48
Smith, Elias, 641
Smith, Frank, 322
Smith, James, 295
Smith, Joseph E., 46
South, Lovinia, 343
Southwick, Edward, 676
Spafford, Dr. Richard S., 257
Sprague, Dr. A. C. L., 559
Spitzka, Dr. E. CL, 74
Stark, Mrs. Helen, 341
Stagg, Abraham, 611
Stagg, Benjamin, 611
Steiner, Walter H., 334
Stearns, Dr. Henry P., 90
Stone, William, 611
Storrs, Emory A., 65
Strong, Dr. James, 91
Strong, Nathiel, 611
Studley, Dr. Frank C, 355
Swaim, Gen. David G., 34
Sullivan, Mary, 559
Sullivan, Morris, 557
Sutherland, David H., 70
Taber, Reuben, 260
Taber, Sarah Ann, 259
Taft, William K., 558
Talbot, Dr. Spencer H., 89
Tandy, Gardner W., 70
Taylor, John, 27
Tarbox, Horace, 70
Thomas, David H., 693

Witnesses — Continued
Thompson, Henry, 295
Tilden, Bryant P., 511
Titcomb, Ephriam, 248
Towle, Gardner, 247
Tullar, Maurice S., 337
Upton, John, 247
Union, Frank L., 44
Validly, Captain James F., 191
Van Bussum, John, 610
Waite, Edmund, 569
Walton, Mattie, 342
Ward, Mrs. Mayme, 335
Washburn, George, 644
Watts, Dr. John, 605
Weed, Hart B., 642
Wegge, Dr. William F., 356
Welhe, Charles H., 72
Weston, William, 693
Wheeler, Judson W., 24
White, Mrs. Sarah B., 24
Whitworth, John S., 638
Wilcoxson, Thompson, 44
Wilkins, Parks P., 562
Willbee, A. C, 326
Williams, George, 560
Wilson, Julia, 70
Withrow, Rev. John L., 78
Witte, Dr. W. C. F., 342
Wolfe, Mary D., 341
Wood, Henry, 78
Woodward, Dr. Joseph D., 36
Worcester, Dr. Samuel, 68
Young, Dr. Noble, 80